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2006 DIGILAW 686 (PAT)

Jagdish Kunwar v. State Of Bihar

2006-08-08

REKHA KUMARI

body2006
Judgment 1. This is an application under Sec. 482 of the Code of Criminal Procedure for quashing the order dated 23.8.2005 passed by the Sub-Divisional Magistrate, Teghra in Case No. 117(M)/2005 under Sec.145 Cr.P.C. by which he has attached the disputed land under Sec.146(1) Cr.P.C. and appointed Anchal Adhikari, Teghra as receiver. 2. Heard both the sides. 3. It appears that on the petition of O.P No. 2 Kedar Nath Jha dated 7.2.2005 for initiating a proceeding under Sec.144 Cr.P.C. against the petitioner, a report was called for from the B.D.O, Teghra, who submitted his report dated 11.3.2005 stating that there were frequent quarrels between the parties over the disputed land and recommended initiation of proceeding under Sec.144 Cr.P.C. Accordingly, a proceeding under Sec.144 Cr.P.C. was initiated between the parties. On 4.5.2005, the proceeding was converted into one under Sec.145 Cr.P.C. and both the parties were asked to file written statements in respect of their claim over the disputed land. Then on 15.6.2005 a petition was filed by O.R No. 2 for attachment of the disputed land under Sec.146(1) Cr.P.C. and for appointment of a receiver on the ground that there was serious apprehension of breach of peace on the alleged attempt on the part of the petitioner to grab the land in question. The learned S.D.M. on the same day called for a report from the Anchal Adhikari, Teghra in this regard, who submitted his report on 9.7.2005. The petitioner filed an objection petition alleging that the report was collusive as the Anchal Adhikari was related to OP. No. 2. It was also prayed therein to get the matter enquired by some other agency. The learned Magistrate after hearing the parties and on being satisfied by the report of the Anchal Adhikari that the case was one of emergency and hence by the impugned order, he attached the disputed land and appointed the Anchal Adhikari as receiver. 4. Learned counsel for the petitioner submitted that the petitioner is in possession of the disputed land. The report of the Anchal Adhikari was collusive and so when the petitioner had filed an objection petition, the learned S.D.M. should have got the matter enquired by some other agency. The main argument, however, is that there was no emergency. 4. Learned counsel for the petitioner submitted that the petitioner is in possession of the disputed land. The report of the Anchal Adhikari was collusive and so when the petitioner had filed an objection petition, the learned S.D.M. should have got the matter enquired by some other agency. The main argument, however, is that there was no emergency. The report of the Anchal Adhikari also does not speak of any emergency and therefore, the learned S.D.M. was not justified in passing the impugned order. He then submitted that there is nothing to show that from the date of filing of the petition for initiation of a proceeding under Sec.144 Cr.P.C. till the date of impugned order any overt act was committed by the petitioner over the disputed land. So, it cannot be said to be a case of emergency. He then referred to the report of the Anchal Adhikari and submitted that though the allegation against the petitioner is that he looted the crops grown by O.P. No. 2 from the disputed land in December, 2004 and on 12.6.2005 when O.P. No. 2 went to cultivate the land by the tractor, the petitioner alongwith anti-social elements abused the driver and drove him away, those incidents are not sufficient to hold the case one of emergency. He further submitted that the petitioner recently had applied for loan for boring in the disputed land and the Anchal Adhikari conducted the enquiry through Halka Karamchari and the Circle Inspector and his possession over the disputed land has been found. 5. Learned counsel for O.P. No. 2 defended the order and submitted that the case was one of emergency and the learned S.D.M. was justified in passing the order. 6. In a proceeding under Sec.145 Cr.P.C. the Magistrate is empowered to attach under Sec.146(1) the disputed property and one of the grounds on which he can attach the disputed property is when he is satisfied that the case is one of emergency. The case of emergency contemplated under Sec.146 has to be distinguished from a mere apprehension of breach of peace and to make out a case for emergency there must be some material before the Magistrate. He would not act under this section upon his personal impression. The provision can be invoked only in cases where the Magistrate finds that but for attachment of the disputed property, the breach of peace is imminent. He would not act under this section upon his personal impression. The provision can be invoked only in cases where the Magistrate finds that but for attachment of the disputed property, the breach of peace is imminent. 7. In this case the learned S.D.M. came to his finding on the basis of the report of the Anchal Adhikari, but I agree with the learned counsel for the petitioner that the report of the Anchal Adhikari does not disclose that it was really a case of emergency. Only because the petitioner allegedly looted the crops grown by O.P. No. 2 in December, 2004 and after six. months on 12.6.2005 drove away the tractor driver of O.P. No. 2 after abusing and threatening him, that is not sufficient to hold that the case was one of emergency. It is not a case where but for attachment of the property breach of peace was imminent. 8. In view of the above discussions, the application is allowed and the impugned order is quashed.