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2014 DIGILAW 933 (ALL)

BUDHSEN @ MUNENDRA v. STATE OF U. P.

2014-03-25

KARUNA NAND BAJPAYEE

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JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—Learned counsel for the petitioner is permitted to make necessary correction in the petition. Supplementary-affidavit filed on behalf of the petitioner is taken on record. This petition has been filed assailing the validity of the impugned order dated 29.6.2012 in Case No. 8 of 2012 (Ganeshi Lal v. Budhsen alias Munendra) P.S. Islam Nagar, District Budaun under Section 145(1) Cr.P.C. and also the order dated 19.2.2013 passed under Section 146(1) of Cr.P.C. whereby property in question has been attached. The petitioner also assails the validity of the order dated 24.1.2014 passed by the revisional Court in Criminal Revision No. 73 of 2013 whereby the revision filed by the petitioner was dismissed on the ground of maintainability. 2. Heard Sri Pankaj Satsangi learned counsel for the petitioner and also Sri Hari Bansh Singh representing opp.party No. 2. Record has also been perused. 3. So far as the correctness of the revisional Court's order is concerned, the revision was disallowed not so much on the merit of the case as was on the point of its non-maintainability for the reason of being an interlocutory order. At this stage this Court does not propose of enter into the question whether in the circumstances which shall be discussed in the later part of the order where the very jurisdiction of the Magistrate to proceed under 146 Cr.P.C. is found lacking, the bar created under Section 397(2) Cr.P.C. shall still operate or not. As this Court is exercising the writ jurisdiction and not the jurisdiction of revision, and has also concluded on the basis of the reasons that shall follow that the order of attachment passed by the Magistrate is illegal, this Court shelves the aforesaid legal question aside and deems it fit to quash the impugned order of attachment of property in question itself in order to avert the miscarriage of justice. 4. So far as the preliminary order passed under Section 145(1) Cr.P.C. is concerned, again there is absolutely nothing on the basis of which any valid objection may be raised. 4. So far as the preliminary order passed under Section 145(1) Cr.P.C. is concerned, again there is absolutely nothing on the basis of which any valid objection may be raised. The Magistrate has come to the conclusion that there existed apprehension of breach of peace and it was therefore very much within the jurisdiction of the Magistrate to proceed under Section 145(1) Cr.P.C. The petitioner’s counsel has also not been able to point out anything on the basis of which any valid or serious castigation could be made against the order and therefore, this Court does not find any good ground to interfere with the same also. 5. The third order is the order of attachment passed under Section 146(1) Cr.P.C. The counsel has vehemently criticized the order on the ground that the initial report submitted by the police on 30.5.2012 was actually made the basis to pass the preliminary order under Section 145(1) of Cr.P.C. This police report was called up from the police station on the application moved by the respondents on 21.2.2012. As the Magistrate was satisfied about the existence of apprehension of breach of peace, therefore,he thought it fit to proceed under Section145(1) Cr.P.C. But subsequently after a period of about six months a second application was moved on behalf of the respondent which is dated 7.9.2012. The Magistrate did not call for any further police report on the second application moved on behalf of the respondent. Yet strangely enough, the counsel submits, that the Magistrate relying upon the same previous police report, proceeded to attach the property in question. The contention is that there was no further development of events which took place after the first application was moved or after the first police report was submitted to the Magistrate. There was no further worsening of the situation from that which existed at the time of previous application or at the time of previous police report. No new development took place. No new police report was called up. Yet the same police report which did not satisfy or had failed to satisfy the Magistrate about the existence of emergency situation was construed to furnish good ground to attach the property at a later stage. No new development took place. No new police report was called up. Yet the same police report which did not satisfy or had failed to satisfy the Magistrate about the existence of emergency situation was construed to furnish good ground to attach the property at a later stage. If the previous police report or the previous application moved by the respondent did not contain any such material which was in the estimate of the Magistrate sufficient to constitute the state of emergency how the same material could after a lapse of six months be said to have become sufficient for the same Magistrate to give rise to the inference that there was existence of any emergency situation. The contention of the counsel is that the existence of emergency situation is a condition precedent on the basis of which alone the property could have been attached under Section 146(1) Cr.P.C. It has also been argued that in fact the order of attachment does not indicate any such finding given by the Magistrate on the basis of which it may be said that even the Magistrate was satisfied about the existence of emergency situation. There is no such specific finding recorded by the Magistrate to that effect which alone could have given jurisdiction to the Magistrate to proceed under Section 146 Cr.P.C. It is on these two main grounds that the order of attachment has been assailed by the counsel. 6. Learned counsel for the respondent has submitted that there is no such legal bar that the previous police report cannot be made the basis of attachment of property at a later stage. According to the counsel there is nothing illegal in the order of attachment done by the Magistrate. 7. I have cogitated upon the rival submissions made at the bar and find force in the submission made by the petitioner’s counsel. The perusal of record shows that the impugned order does not contain any such finding regarding the existence of emergency situation. The impugned order is conspicuous by absence of any such finding or satisfaction recorded by the Magistrate. It is also apparent from the record that when opposite party moved the second application seeking the attachment of property there was no further police report called up by the Magistrate. The impugned order is conspicuous by absence of any such finding or satisfaction recorded by the Magistrate. It is also apparent from the record that when opposite party moved the second application seeking the attachment of property there was no further police report called up by the Magistrate. The impugned order also reveals that the property has been attached only on the basis of the finding that there existed apprehension of breach of peace. There is marked difference in between apprehension of breach of peace and existence of an emergency situation. Whenever there is an apprehension of breach of peace the Magistrate acquires jurisdiction to proceed under Section 145 Cr.P.C. But if the situation deteriorates to become grave and assumes any such complexion which may be described to be an emergency situation then the Magistrate acquires the jurisdiction to attach the property under Section 146 Cr.P.C. The absence of emergency situation will cut at the root of the matter and it will be difficult to justify the order of attachment in the absence of any such finding. It is true that some times the report on the basis of which the attachment has been made may contain some such facts which by themselves may inherently indicate the existence of emergency situation and even in the absence of specific finding to that effect given by Magistrate the higher Court may find it apparent on the face of record that there did exist such emergency situation. But this will all depend upon the facts and circumstances of each case. So far as the matter at hand is concerned, I do not see any such fact contained either in the application moved by the respondent or in the police report. That seems to be the reason why at an earlier stage the application of the opposite party or the police report with regard to the same could satisfy the Magistrate about the apprehension of breach of peace alone and who therefore deemed it fit to proceed under Section 145(1) Cr.P.C. only. This is really in-comprehensible as to how the same Magistrate six months later on made the same police report the basis to attach the property even though no new development was reported to have taken place. 8. This is really in-comprehensible as to how the same Magistrate six months later on made the same police report the basis to attach the property even though no new development was reported to have taken place. 8. The existence of emergency is sine-qua-non, or a condition precedent, the absence of which shall denude the Magistrate from the jurisdiction to exercise power provided under Section 146 of Criminal Procedure Code. An order without jurisdiction is no order at all. It is non-est in the eyes of law. 9. In the aforesaid circumstances, I am of the view that the order of attachment in the absence of those essential ingredients of law which alone could confer the jurisdiction to attach the property under Section 146 Cr.P.C has been illegally passed. The impugned order of attachment dated 19.2.2013 is, therefore, quashed and the writ petition is allowed to that extent.