Research › Browse › Judgment

Patna High Court · body

1983 DIGILAW 13 (PAT)

Chet Lal Mahton v. Rewa Lal Mahton

1983-01-11

K.B.SINHA

body1983
JUDGMENT : K.B. Sinha, J. A common question of law is involved in both these revision petitions and so with the consent of the learned counsels for the parties they are disposed of by this common JUDGMENT :. The facts of the two cases are little different from each other and hence they are put separately. Criminal Revision No. 777 of 1981 The two petitioners in this case have challenged the ORDER :passed by the Sub-divisional Officer, Jamtara on the 25th June, 1981, by which the land in dispute in a proceeding under Section 145 of the Criminal Procedure Code (hereinafter referred to as 'the Code') was attached under the provision of Section 146(1) of the Code. It appears that some time after initiation of the proceeding under section 145 of the Code, a petition was tiled by the opposite party (first party) that there was apprehension of breach of the peace for cultivation of the disputed land as the cultivation season had set in. After hearing the counsel for the opposite party (first party), the impugned ORDER :was passed. Sri N.K. Agrawal learned counsel appearing on behalf of the petitioners has challenged the ORDER :mainly on the ground that the learned Magistrate had not given specific finding that it was a case of emergency and in absence of such finding the ORDER :is void. It is also contended that even reasons have not been assigned by the learned Magistrate in support of his ORDER :for attachment of the disputed land. 2. The points raised on behalf of the petitioners have been seriously disputed by Mr. S.R. Ghosal, learned counsel appearing on behalf of the opposite party. His contention is that it is not necessary to mention the word 'emergency' by the Magistrate when he decides to attach the land under Section 146 (1) of the Code. According to his submission an ORDER :for such attachment can very well be passed if material are available on the record which can lead to the inference that, in fact, it is a case of emergency. Criminal Revision No. 650 of 1981 3. In this case a proceeding under lection 145 of the Code was started by the Sub-divisional Officer, Jamtara on 24.6.1981 at the Magistrate found that there was apprehension of breach of the peace regarding dispute over some land. Criminal Revision No. 650 of 1981 3. In this case a proceeding under lection 145 of the Code was started by the Sub-divisional Officer, Jamtara on 24.6.1981 at the Magistrate found that there was apprehension of breach of the peace regarding dispute over some land. A petition was filed by the opposite party' (first party) in the court below on 25.6.1981 to attach the land under Section 146(1) of the Code on the ground that the season for cultivation had commenced and he was apprehending trouble in cultivation of the land. After hearing the opposite party (first party), the Magistrate passed the impugned ORDER :. 4. As in the first case, so in this case also the ORDER :has been challenged by Sri N.K. Agrawal, learned counsel appearing on behalf of the petitioners on the same ground that neither there was material to hold that it was a case of emergency nor the Magistrate recorded any such finding. 5. Sri Y.C. Verma, learned council appearing on behalf of the opposite party (first party) has strenuously argued in support of the impugned ORDER :. His contention is that the Magistrate has given some reasons and nothing more is required for making this ORDER :maintainable in the eye of law. It is further submitted that it is not necessary for the Magistrate to give detailed facts for recording finding that it is a case of ‘emergency.’ According to him sufficiency or otherwise of the materials cannot be a subject matter of consideration by a higher court at revisional stage. It is enough that the Magistrate mentions in his ORDER :that a situation has arisen that necessitated attachment of the land under Section 146(1) of the Code. 6. It may be noted that almost in the lame terms the learned Magistrate hall passed the ORDER :under challenge in both the cases. The learned counsels appearing on behalf of the opposite party (first party) in both the cases have led great stress that expression abnormal situation (ASAMANYA STHITI) indicates that the Magistrate had considered the Case to be one of emergency. 7. From the record it appears that the impugned ORDER :s were passed in both the cases on 25.6.81 and the learned Magistrate has stated therein that there was tension on account of dispute between the parties over cultivation of land and as such there was apprehension of breach of the peace. 7. From the record it appears that the impugned ORDER :s were passed in both the cases on 25.6.81 and the learned Magistrate has stated therein that there was tension on account of dispute between the parties over cultivation of land and as such there was apprehension of breach of the peace. It is also stated in the impugned ORDER :s that abnormal situation has arisen (ASAMANYA STHITI) and so the land was attached under section 146 (1) of the Code. 8. There is no doubt that after initiation of a proceeding under Section 145 of the Code, the Magistrate is fully empowered to pass an ORDER :under Section 146 (1) of the Code at a later stage, if in his opinion, one of the three conditions said down under the said Section is found to be in existence. Firstly when he considers the case to be one of emergency Secondly, if he decides that none of the parties was then in the possession as is referred to in Section 145 of the Code and lastly if he is unable to satisfy himself all to which of them was then in such possession of the subject matter of dispute I final that so far as the last two conditions are concerned, they have no application to the facts and circumstances of this case. It also has not been argued by the learned counsels appearing on behalf the parties that this case is covered by either of the last two conditions. After perusal of the ORDER :under challenge, it is obvious that the Magistrate is purported to have passed these ORDER :s having held the case to be one of emergency. 9. The word 'emergency' mentioned in Section 146 (1) of the Code envisages a situation completely different from one in which there is apprehension of breach of the peace, which is one of the basic legal necessity for initiating a proceeding under Section 145 of the Code. It is not enough merely to state that some abnormal situation had arisen. The Magistrate, even if he states in his ORDER :that in his opinion it was a case of emergency that by itself cannot be held to be sufficient for passing an ORDER :of attachment under Section 146 (1) of the Code. It is not enough merely to state that some abnormal situation had arisen. The Magistrate, even if he states in his ORDER :that in his opinion it was a case of emergency that by itself cannot be held to be sufficient for passing an ORDER :of attachment under Section 146 (1) of the Code. The ORDER :should contain the fact and circumstances on the basis of which a reasonable inference can be drawn that it was a case of emergency. The ORDER :should contain atleast, so much of material that it may be possible for a higher court to test objectively whether the Magistrate had applied his mind for recording his satisfaction about emergency. Mechanical reproduction of certain terms as used in the statute cannot justify a finding unless there are materials in support of it. 10. In these two cases, as mentioned above, the learned Magistrate has only stated that there was tension between the parties over cultivation of land in dispute that gave rise to an abnormal situation. He has neither placed any material, if available on the record nor there is any discussion regarding any such material which he took into consideration for recording his satisfaction that it was a case of emergency. 11. The learned counsel appearing on behalf of the opposite parties have placed reliance On a Bench decision of this court in the case of Mahendra Tewari v. Mostt. Lal Pari Devi (1981 BBCJ page 570). In this Case it has been held that even if the ORDER :making the attachment is nut explicit about the emergency but there are materials to justify the ORDER :of attachment, such an ORDER :s cannot be interfered with. Reliance has also been placed on a decision of a learned Single fudge, of this Court in the case of Baijoath Choubey and others v. Dr. Ramekbal Choubey and others 1981 PLJR 317 (1981 BLJR page 531) where it has been held that the omission on the part of the Magistrate to use the word "emergency" by itself will not vitiate the attachment ORDER :, if it otherwise discloses emergency. Undoubtedly, when materials are available on the record regarding situation of emergency, interference with such ORDER :is not called for by the revisional court on the g round of omission to use the word emergency by the Magistrate. Undoubtedly, when materials are available on the record regarding situation of emergency, interference with such ORDER :is not called for by the revisional court on the g round of omission to use the word emergency by the Magistrate. I have already held that the learned Magistrate has failed to furnish the materials to justify his finding regarding emergency and so the principle laid down in these cases are not at all helpful to the opposite parties. 12. When the impugned ORDER :s are not supported of reasoning and they are completely silent regarding the facts and circumstances which weighed with the Magistrate in corning to the conclusion that the case was one of the emergency, it is difficult to sustain such an ORDER :. 13. In the result the impugned ORDER :s are set aside and the petitions are allowed. I will like to add that it is open to the Magistrate to make arrangement for m management of the property in accordance with law. 14. It appears that the proceedings in both the cases under Section 145 of the Code was started some time in the later half of the year, 1981 and so it is high time that they should be disposed of without further delay. The learned counsels appearing on behalf of the parties have assured full co-operation to the Magistrate for this purpose and according to their estimate a period of four months would be sufficient for disposal of the proceeding under Section 145 of the Code. The Magistrate is hereby directed to dispose of the proceeding under Section 145 of the Code within a period of six months from the receipt of this ORDER :. 15. Let the records of the two cases be sent forthwith.