AMRIT SINGH Vs. GYANDEO SHARMA

JUDGEMENT

(1.) This application is directed against an order dated 1st of May 1975 by which the Sub-divisional Magistrate, Patina Sadar, attached the lands in dispute Under Section 146 of the Code of Criminal Procedure. From the order it appears that he was requested to make a local inspection but he thought that there was no necessity of it and, after hearing arguments of learned Advocates for both the parties, he passed the order, as he thought that breach of the peace may take place or. the disputed lands any time.

(2.) Section 146(1) of the Code of Criminal Procedure lays down that the Magistrate at any time after making the order under Sub-section (1) of Section 145, if he considers (1) the case to be one of emergency, or (2) if he decides that none of the parties was then in such possession as is referred to in Section 145, or (3) if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he ray attach the same until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Admittedly the case is not covered by the second and the third clauses. The only question is whether it was a case of emergency in the opinion of the Magistrate and, therefore, he could pass an order of attachment Under Section 146(1) of the Code, The Magistrate has not said expressly that it was a case of emergency. It may be that even in such cases where the Magistrate does not say that the case is one of emergency but if the circumstances are such that the superior Court thinks that the oases was one of emergency, then that Court may not interfere. Here, the Magistrate has merely said that breach of the peace might take place at any time. In each and every case where a proceeding Under Section 145 is initiated, there is an apprehension of breach of the peace: that is, breach of the peace may take place any time. If there is no apprehension of breach of the peace, then a proceeding Under Section 145 of the Code cannot be initiated. Therefore, a case of emergency, as contemplated Under Section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace. Both cannot be equated. A mere statement on the part of the Magistrate that he thinks that there may be breach of the peace on the disputed land any time cannot be taken to be that in his opinion it is a case of emergency. Even if the Magistrate says that the case is of emergency, that by itself may not be sufficient for attachment. In the order to be passed by the Magistrate he must explain the circumstances why he thinks it to be a case of emergency, so that the superior Court may judge whether the Magistrate has really applied his mind to the facts or not and whether his satisfaction of the case of emergency is a judicial and objective one. In absence of this, the order of attachment on the ground of emergency cannot be sustained.

(3.) In the result, the application is allowed and the order of the Magistrate is set aside.