NARAYAN BEHERA Vs. PANU MOHAPATRA

JUDGEMENT

(1.) THE members of the first party in a proceeding under Section 145, Criminal Procedure Code are petitioners and they challenge the order dated 13 -7 -77 passed by the Executive Magistrate, Nayagarh by which he has stayed further proceedings in Misc. Case 58/75 under Section 145, Criminal Procedure Code as according to him, the disputed land having been put to court auction and the proceeds thereof having been deposited in the court, the subject of dispute should be deemed to have been attached under Section 146 (1), Cr. P.C, and no further proceeding under Section 145, Criminal Procedure Code would continue.

(2.) ON 15 -5 -75 the second party (opposite parties in this case) filed a petition before the court of the S. D. M., Nayagarh to start a proceeding under Section 145, Criminal Procedure Code in respect of the disputed property. The learned Magistrate forwarded the petition to the Officer -in -charge, Odgaon P. S. for enquiry and report. On receiving the police report, the Magistrate was satisfied that a dispute likely to cause breach of the peace existed concerning the disputed land and passed the preliminary order on 6 -8 -74 as follows : -

(3.) IN both these cases the order under Section 145 (1) Criminal Procedure Code and also the order in terms of Section 146 Criminal Procedure Code were passed by the Magistrates on being satisfied on the materials before them on the same day by the same order and the entire property in dispute was kept under custodia legis. Relying on these decisions it is contended on behalf of the second party -opposite parties that in view of the auction of the paddy lands the proceeding is automatically converted to one under Section 146 Criminal Procedure Code and the pro -visions of Section 146 Criminal Procedure Code are automatically attracted and the property remains under custodia legis and the Magistrate has no jurisdiction to proceed with the case under Section 145 Criminal Procedure Code and he will have to stay further proceedings. On behalf of the first party -petitioners it is contended that where no orders have been passed in terms of Section 146 (1) Criminal Procedure Code which says that if the Magistrate at any time after making the order under sub -sec. (1) of Section 145 considers the case to be one of emergency, then only the provisions of Section 146 are attracted. The word 'considers' means 'to think or deliberate on, to look at attentively or carefully'. So before passing the order, the Magistrate must apply his mind to the facts and circumstances of the case and then to decide as to whether there was any emergency or not and thereafter he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. In this case the Magistrate has not considered the case and has not come to any conclusion as to existence of emergency. Merely because he has auctioned the paddy lands which were lying fallow, it cannot be said that Section 146 Criminal Procedure Code is automatically attracted and the proceeding should be stayed.