RAM SWARUP PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the order dated 11.8.2006 passed by the learned Sub -divisional Magistrate, Narkatiaganj in case No. 312(M) of 2006 whereby he has attached the disputed land and appointed the Anchal Adhikari, Narkatiaganj as receiver under the provisions of Sec. 146(1) of the Code of Criminal Procedure (hereinafter referred to as the Code).

(2.) LEARNED counsel for the petitioner submitted that the land in question is in possession of the petitioner and there is no breach of peace regarding the land and so, there was no ground to initiate a proceeding under Sec. 145 of the Code. He further submitted that the impugned order does not show that there was any emergency and, therefore, the learned Magistrate was not at all justified in passing the impugned order.

(3.) ACCORDING to Sec. 146(1) of the Code the Magistrate in a proceeding under Sec. 145 of the Code can attach the disputed property in any of the conditions viz. (i) when he considers the case to be of emergency and (ii) when after enquiry he is unable to decide who among the parties is in possession or decides the name of the party in actual possession. A case of emergency contemplated under Sec. 146(1) of the Code is different from a mere case of apprehension of breach of peace. The provision of emergency attachment as envisaged under Sec. 146(1) of the Code may be invoked only in cases where the Magistrate records satisfaction that attachment of the property is essential as the breach is imminent and to make out a case of emergency there must be some material before the Magistrate on record from the statements of the parties, documents produced or evidence adduced and not upon personal impression of the Magistrate.