SRIKANT PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Mr. Satyavrat Verma, learned advocate appearing on behalf of the petitioners and Shri Abhitabh Kumar, learned counsel appearing on behalf of the opposite party no.2. Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor for the State is present. The petitioners have challenged the order dated 10.12.2007 passed by the learned Sub Divisional Officer, Narkatiaganj, West Champaran in Case No.1652 of 2007, whereby the prayer made on behalf of the petitioners under Section 145(5) of the Code of Criminal Procedure has been refused and the property in question has been attached under the provisions of Section 146(1) of the Code of Criminal Procedure. The counsel for the petitioners submits that opposite party no.2 earlier preferred an application before the Court of the learned Sub Divisional Officer, Narkatiaganj, West Champaran, leading to institution of a case, namely, Case No. 998 M of 2007. Section 144 of the Code of Criminal Procedure proceeding, which was initiated over the property in question, was ultimately dropped vide order dated 20.08.2007. It has then been submitted by the counsel for the petitioners that after dropping of the 144 proceeding, referred to above, the opposite party no.2 straightway filed application under Section 145 of the Code of Criminal Procedure seeking intervention of the executing agency on the ground of apprehension of breach of peace and public tranquility. It was the case of opposite party no.2 that when he went to the plot of land in question for cultivation, he was assaulted and was thrown out. The counsel for the petitioners further submitted that merely on such an application preferred by opposite party no.2, the learned Sub Divisional Officer, Narkatiaganj, West Champaran, vide his order dated 13.11.2007, initiated a proceeding under Section 145 of the Code of Criminal Procedure. The petitioners submit that it was not the correct procedure and the learned Magistrate ought to have enquired or sought report from the police regarding the apprehension of breach of peace. Unless, the Magistrate is satisfied with respect to the apprehension of breach of peace, no proceeding, in the first instance, could be initiated.

(2.) BE that as it may, instead of challenging such summons issued under Section 145(1) of the Code of Criminal Procedure, the petitioners preferred an application under Section 145(5) of the Code of Criminal Procedure before the concerned Court for dropping of the proceeding on the ground that the title and possession over the said property lay with the petitioners. During hearing of such application under Section 145(5) of the Code of Criminal Procedure, an application was preferred by opposite party no.2, urging the Court to attach the property in question so that a proper determination with respect to the possession of either of the parties is done on the facts of the case. The learned Sub Divisional Officer, Narkatiaganj, West Champaran, vide his composite order dated 10.12.2007, refused the prayer of the petitioners for dropping the proceedings under Section 145(5) and at the same time attached the property in question under Section 146(1) of the Code of Criminal Procedure. By the same order, the Officer Incharge of Shikarpur Police Station was appointed as a Receiver. The Receiver was in turn directed to deposit the sale proceeds of the crops on such land in the Nazarat of the Sub Division. The aforementioned order is under challenge. From perusal of the records of this case, it appears that this application was admitted vide order dated 13.03.2012. The order dated 10.12.2007 was also stayed by this Court. The proceeding under Section 145. of the Code of Criminal Procedure has obviously been forestalled. The petitioners have challenged the order dated 10.12.2007 on primarily two grounds. It has been submitted that the attachment order is without jurisdiction. There was no report/material before the learned Magistrate to come to a conclusion that a grave emergency existed. The other ground of challenge is that despite of the evidence/documents, which were in possession of the petitioners, demonstrating their title and possession over the property in question, the proceedings were not dropped, as envisaged under Section 145(5) of the Code of Criminal Procedure. So far as the challenge to Section 146(1) of the Code of Criminal Procedure is concerned, such orders under Section 146(1) could be passed under certain conditions. In case of grave emergency, if parties are not in a position to demonstrate their possession over the property in question or the Magistrate is not in a position to decide as to which party was in possession, provision for attachment is made under the Code. Existence of grave emergency and threat to breach of peace is a primary consideration for the Magistrate to take up the issue of determination of possession under Section 145(1) of the Code of Criminal Procedure. Once, the proceeding under Section 145 of the Code of Criminal Procedure commences, it presupposes the subjective satisfaction of the Magistrate with respect to the emergency and the prospective breach of peace and tranquility. The order of attachment, therefore, is passed only as an adjunct to any order having been passed under Section 145(1) of the Code of Criminal Procedure.

(3.) THE application is disposed of accordingly.