MAHENDRA TIWARY Vs. LAL PARI DEVI

JUDGEMENT

(1.) The petitioner who is member of the second party to a proceeding under section 145 of the Code of Criminal Procedure hereinafler referred to as 'the Code') has filed this application against the order, dated 2nd May, 1979 passed by the Sub-divisional Judicial Magistrate, West Muzaffarpur, whereby he ordered attachment of the land in dispute on the ground that there was sufficient tension (Kafi Tanav) between the parties and on that account, apprehension of breach of the peace. It has further been observed in the said order that to come to a decision as to which of the parties was in possession of the disputed land it was bound to take certain time on account cf the legal difficulties.

(2.) The order has been impugned by the petitioner on the ground tha inasmuch as the facts stated in the order of attachment did not disclose any case of emergency the order of attachment was bad in law.

(3.) The proceeding in question was initiated on 27th November, 1978 on police report with respect to 1 acre 36 decimals of land, written statements were filed by both the parties and then on 2nd January. 1979 the members of the first party filed a petition before the learned Magistrate alleging therein that the member of the second party (inadvertantly mentioned in the petition as members of first party) with a view to create unnecessary and illegal disturbance over the disputed land had started executing forged and fabricated documents with respect to the disputed land in order to set up other persons "to create uncalled troubles over the disputed land leading to a serious apprehension of breach of peace in pendency of the present proceeding." on these allegations it was further alleged that an emergency existed, as breach of the peace had become imminent at the hards of the second party and their associates. Although the impugned order does not mentiond in any particular details the materials, on which the learned Magistrate place reliance in passing the order of attachment the order at least says this much that he looked into the written statement and heard both the parties. It seems" therefore, quite natural that members of the first party must have pressed the above petition in the circumstances alleged therein, which prevailed upon the learned Magistrate to pass the order of attachment.