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Jharkhand High Court · body

2014 DIGILAW 1049 (JHR)

Shakoor Khan v. State of Jharkhand

2014-10-16

AMITAV K.GUPTA

body2014
ORDER : The instant revision is directed against the impugned order dated 11.12.2007 passed by the learned Sub-Divisional Magistrate, Sadar Hazaribagh in Misc. Case No.266 of 2007, whereby the land measuring 3.37 acres of the plots mentioned in the impugned order under Khata No.25 at village Garkey @ Gobindpur, P.S. Katkamsandi, District -Hazaribagh were attached under Section 146 of the Cr. P.C in a proceeding under Section 144 of the Cr. P.C. 2. On perusal of order dated 09.10.2014, It is evident that none appeared on behalf of the O.P. No.2 whereupon the case was posted today with specific direction that if none appears on behalf of the O.P. No.2 the matter shall be heard as per submission of learned counsel for the petitioner and counsel for the State, despite repeated calls none appears on behalf of the O.P. No.2. However, Mr. Shekhar Sinha, learned A.P.P is in attendance. 3. Mr. M. K. Dey, learned senior counsel appearing on behalf of the petitioners has submitted that the court below has passed the order against the provisions of law for attachment of the disputed lands under Section 146 of the Cr. P.C without initiating any proceeding under Section 145 of the Cr. P.C. It has further been submitted that the attachment under Section 146 (1) of the land could only be made after the proceeding has converted under Section 145 of the Cr. P.C and in the present case, it is evident from the impugned order that no enquiry was conducted and the order has been passed without verifying whether there is any likelihood of breach of peace with regard to the land in dispute. It has also been submitted that earlier by order dated 02.12.1985, passed in Misc. Case No.288 of 1978 the court below had directed the O.P. No.2 to take recourse to the Civil Court and this fact has not been considered by the learned Magistrate. 4. Heard. Section 146 (1) of the Cr. P.C reads as follows :- “146. Power to attach subject of dispute and to appoint receiver. Case No.288 of 1978 the court below had directed the O.P. No.2 to take recourse to the Civil Court and this fact has not been considered by the learned Magistrate. 4. Heard. Section 146 (1) of the Cr. P.C reads as follows :- “146. Power to attach subject of dispute and to appoint receiver. (1) 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 the peace with regard to the subject of dispute. (2) …............” On bare perusal of the provision, it is mandated that order under Section 146 of clause 1 that the attachment can be made only after an order is passed under sub-section (1) of Section 145 of the Cr. P.C and the statute stipulates that if the Magistrate is satisfied that there is likelihood of breach of peace with regard to the said land and after recording his satisfaction, the order can be passed after initiation of a proceeding under Section 145 and not under Section 144 of the Cr. P.C, thus, it is evident that the impugned order has been passed in violation of the provisions of law and is beyond the jurisdiction and scope of the provisions of Section 144 Cr. P.C. 5. Accordingly, the impugned order dated 11.12.2007 passed by the learned Sub-Divisional Magistrate, Sadar Hazaribagh in Misc. Case No.266 of 2007 is hereby, set aside and the revision application is hereby allowed.