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2009 DIGILAW 1374 (PAT)

Madan Prasad v. State of Bihar

2009-11-04

body2009
ORDER Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. 2. The petitioner is aggrieved by the order of attachment dated 17.5.2008. The main grievance of the petitioner is that the order has been passed under Section 146 of the Code of Criminal Procedure without giving an opportunity to the petitioner to satisfy the Court that he is in possession of the land in question. 3. Section 146 of the Code of Criminal Procedure reads as follows:- "If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute." 4. It is, therefore, incumbent that the Magistrate concerned should firstly come to a finding that there is a situation which requires immediate action and there is like. 'like-lihood of breach of peace. As far as this aspect is concerned, it appears that the Magistrate has come to this finding although he has not disclosed the reasons as to why it is essential to attach the properties. Secondly, it requires that the Magistrate should come a finding that neither of the parties are in possession of the disputed property and in such cases, he may also order for attachment of the property. 5. The main grievance of the petitioner is that the Magistrate has not recorded any finding as envisaged under Section 146 of the Code of Criminal Procedure wherein it was required that he should have prima facie held that he has not been able to satisfy himself as to which of the parties are in possession of the lands in question. 6. I, accordingly, remand the matter back to the Sub-Divisional Officer, Aurangabad to decide this issue. 7. 6. I, accordingly, remand the matter back to the Sub-Divisional Officer, Aurangabad to decide this issue. 7. In the meantime: the order dated 17.5.2008 will continue until the Sub-Divisional Officer, Aurangabad hears the parties and decides the issue with respect to the attachment of the disputed land under Section 146 of the Code of Criminal Procedure. 8. It would be proper that the Sub-Divisional Officer should decide this issue after hearing both the parties within a period of three months from the date of receipt production of a copy of this order before him. 9. This application is disposed of with the aforesaid observations and directions.