The circumstances constituting a situation of emergency under Section 146 of Cr.P.C must be distinguished from a mere case of apprehension of breach of peace, and the Magistrate must explain the circumstances why he thinks it to be a case of emergency.

Headnote:
Attachment - Land Dispute - The court set aside the order of attachment of land and directed the Sub-Divisional Magistrate to hear both parties and pass a fresh order according to law within a period of one month.
Fact of the Case:

The revision petitioner filed an application under Section 145 of Cr.P.C before the SDM, stating that he is the title holder of land and there are chances of breach of peace with regard to possession over the land. The SDM directed the attachment of the land and handed over possession to an impartial person. The respondents filed a revision petition, and the court set aside the order of attachment.
Finding of the Court:

The court found that the SDM had committed patent illegality in reaching the conclusion that there was a situation of emergency, and the apprehension of breach of peace may not be taken as an emergency necessitating the order of attachment. The court directed the SDM to hear both parties and pass a fresh order according to law within a period of one month.
Issues: The issues revolved around the validity, propriety, and legality of the order of the SDM, the jurisdiction of the Revisional Court to examine the order, and the interpretation of the circumstances constituting a situation of emergency under Section 146 of Cr.P.C.
Ratio Decidendi: The court held that the SDM had committed patent illegality in reaching the conclusion that there was a situation of emergency, and the apprehension of breach of peace may not be taken as an emergency necessitating the order of attachment. The court directed the SDM to hear both parties and pass a fresh order according to law within a period of one month.
Final Decision: The court dismissed the petition, finding no merit and no impropriety or illegality in the impugned order. The court set aside the order of attachment and directed the SDM to hear both parties and pass a fresh order according to law within a period of one month.

ORDER

(1) This criminal revision under Section 397 read with Section 401 of Cr.P.C is filed feeling aggrieved by order dated 28/10/2023 passed by First Additional Sessions Judge, Jaura, District Morena in Criminal Revision No. 68/2023 whereby order dated 05/06/2023 passed by Sub-Divisional Magistrate, Jaura District Morena in case No.10/2023 was set-aside. Learned Sub-Divisional Magistrate had passed an order of attachment under Section 146(1) of Cr.P.C. (2) The exposition of facts giving rise to present revision petition is as under:-

(i) Revision Petitioner Dharampal had filed an application under Section 145 of Cr.P.C before the SDM, Jaura. District Morena inter alia stating that he is title holder of land ad-measuring 12.510 hectares. He is in possession of land for last 25 years. On 03/06/2023, respondents came to his agricultural field armed with firearms; and other weapons and intercepted him in cultivating the land. There are chances of breach of peace with regard to possession over land.

Therefore, Police Station Baghchini, District Morena may be directed to protect peaceful possession of petitioner- Dharampal Singh over the land mentioned in the application.

(ii) Dharampal Singh submitted another application under Section 146 of Cr.P.C requesting that land mentioned in the application be attached and given in custody of any impartial person till the dispute is decided, in view of breach of peace between the parties. The application was enclosed with affidavit of Dharampal Singh.

(iii) Learned SDM, Jaura, District Morena vide order dated 05/06/2023 directed the respondents to appear and submit written answer to the application under Section 145 of Cr.P.C on or before 22/06/2023.

(iv) On the same day i.e. 05/06/2023, learned SDM, Jaura, District Morena passed another order under Section 146 of Cr.P.C directing attachment of land mentioned in the application under Section 145 of Cr.P.C and to hand over possession to some responsible impartial person.

(3) This revision petition is filed assailing the order dated 28/10/2023 on following grounds :-

(I) The revision petitioner in his application filed before SDM stated that respondents are habitual offenders. They are in habit of grabbing land of others.

(II) Application was supported by an affidavit of revision petitioner that there was serious threat of breach of peace as well as disturbance of law and order. Considering the gravity of situation on spot, the SDM, Jaura District Morena has passed an order under Section 146 of Cr.P.C. (III) Learned Revisional Court has ignored the fact that proceedings under Section 145 of Cr.P.C is pending between the parties. Respondents may have filed reply to application under Section 145 of Cr.P.C. (IV) Learned Revisional Court has committed an error in concluding that factum of oral partition is not reliable.

(V) The SDM had concluded that there is apprehension of breach of peace, therefore, no error was committed in directing attachment of property. The SDM has exercised the jurisdiction which is vested in him. The Revisional Court has no power to supersede the order of SDM .

On aforementioned grounds, it is requested that the impugned order dated 28/10/2023 be set aside and order of SDM be restored till conclusion of proceedings under Secti

Click Here to Read the rest of this document