Judgment:
P.K. Tripathy, J.
1. The second party members in Criminal Misc. Case No. 398 of 1997 under Section 145, Criminal Procedure Code, 1 973 (in short, 'the Code') have filed this application under Section 482 of the Code challenging legality and correctness of the order dt. 27.11.1997 of the Executive Magistrate, Anandpur. The first party is the opposite party in this case.
2. Opposite party filed the petition for action under Section 145 on the ground that he is the owner in possession of the disputed case land measuring an area of A 2.48 decs. in Mouza Kanpur under Soso Police Station in the district of Keonjhar and alleging that the Second Party members having no right, title, interest and possession, but taking advantage of entry of the name of petitioner No. 1 in the revenue records and Chakabandi record, are creating disturbance in his peaceful possession resulting in apprehension of breach of peace. Opposite party filed that petition on 31.10.1997. Learned Executive Magistrate asked for an enquiry by the O.I.C., Soso regarding existence of apprehension of breach of peace and simultaneously directed the petitioners to appear before him and to show cause with documents as to why order under Section 145 of the Code shall not be passed and the case was posted to 26.11.1997. From 26.11.1997 the case was adjourned to 23.12.1997 because of non-receipt of the S.R. Nothing was mentioned about non-availability of the Police report. On 27.11.1997 opposite party filed a petition stating about the existence of breach of peace and praying for action under Sections 145 and 146 of the Code. Learned Magistrate considered the petitions filed on that date and passed the following order.
'This case is put up today on advance petition filed by the 1st party. 1st party filed a petition stating that the O.Ps. were absent yesterday though they have received notice from the police on 25.11.1.997 and prayed to pass an order under Section 145, Cr.P.C. and to attach the land. An affidavit is also filed by the 1st party in which he has stated that the notice was served on the 2nd party members by the police on 26.11.1997. Perused petition and affidavit. Heard Advocate. I feel that there is apprehension of breach of peace. Village Kanpur is within my local jurisdiction. I Sri G.G. Debata, O.A.S. & E.M., Anandpur pass order under Section 145, Cr.P.C. and call up on the parties to file their show cause, documents and adduce evidence in support of their claims before the undersigned on 23.12.1997. Orders passed to maintain status quo is hereby withdrawn. The land schedule below is attached under Section 146, Cr.P.C. and R.I. Soso is appointed as receiver. R.I., Soso is directed to render accounts relating to the crop in each year till disposal of this case.
Land ScheduleVillage Khata No. Chaka No. Plot No. Area Kanpur 302 164 1177 Ac.0.43 Dec.180 1196 Ac.1.48 Dec.59 1008 Ac.0.57 Dec.-------------Total - Ac.2.48 Dec.Under Section 145(3), Cr.P.C. I direct that the services of this order on the parties concerned shall be sufficient for the purpose of this order. The O.I.C., Soso P.S. is directed to do needful and see that the orders of this Court are not violated.
P/U on 23.12.1997.
Sd/-Illegible
dt. 27.11.1997
E.M. (A)'
3. In challenging the above order with respect to attachment of the disputed case lands under Section 146 of the Code petitioners have argued that the Executive Magistrate could not have passed that order under Section 146 in the absence of a preliminary order or simultaneously with a preliminary order under Section 145(1) of the Code and more so in the absence of a valid reason as provided in Section 146 inasmuch as there does not exist any apprehension of breach of peace much less a situation of emergency. They further argued that when the case was posted to 23.12.1997, learned Magistrate should not have advanced the case record to 27.11.1997 and passed the impugned order.
4. It is argued by learned counsel for the opposite party that the aforesaid criticism of the impugned order is non-sustainable inasmuch as learned Magistrate after being satisfied about existence of apprehension of breach of peace passed the preliminary order under Section 145(1) and thereafter order under Section 146(1) of the Code for attachment of the land so as to prevent blood-shed between the parties. No further argued that learned Executive Magistrate was neither functus officio nor he acted without jurisdiction or illegally when he advanced the case record on the petition of opposite party and passed the impugned order on 27.11.1997.
5. The second contention of the petitioners that the case record should not have been advanced and the impugned order should not have been passed behind their back, is taken up first.
So far as it relates to the argument that the case could have been advanced to pass the preliminary order, that contention is devoid of merit because when the matter was pending consideration before the Executive Magistrate he was competent enough to take action on receipt of any application after making a due consideration. When the petitioner had not entered appearance in the proceeding, he cannot claim prejudice on the ground that the impugned order was unreasonably passed behind his back.
6. Both the parties have relied upon several citations and after perusal of the L.C.R. and the provision of law, this Court does not feel that all the cited decisions should be discussed. However, while considering the relevant point the decisions which are relevant and not causing repetition shall be noted in this judgment.
7. The provision in Section 146 of the Code is a corollary to Section 145. The Executive Magistrate is empowered under-Section 146(1) of the Code to attach the subject of dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second or third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession. Thus, in the present case, to pass an order of attachment learned Magistrate can take recourse to the circumstance No. (i) i.e. regarding existence of emergency and to record the same. While deciding the question as to whether an Executive Magistrate becomes functus officio after the order of attachment under Section 146(1) of the Code is passed by him, similar view as above has been expressed by the Apex Court in the case of Mathuralal v. Bhanwarlal and Anr.: AIR 1980 SC 242. In the case of Indu Bhoi and Ors. v. Eka Ugar and Anr., (1988) I OCR 42 and B. Dasso Patro and Ors. v. B. Tariniga Patro and Anr.: 1983 Cri.L.J. 121 similar view has also been propounded by this Court regarding existence of emergency and recording subjective satisfaction about that factum.
8. The provision of law as discussed above is clear and unambiguous to hold that an order under Section 146 of the Code falling within the category No. (i) (as noted above) can be passed by the Executive Magistrate after a preliminary order under Section 145(1) is passed by him and after being satisfied about existence of emergency and recording such satisfaction in the order. It appears from the above impugned order of the learned Magistrate that though he recorded his satisfaction about the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), he did not mention anything in that order that there exists a case of emergency. Therefore, the impugned order relating to attachment under Section 146(1) is neither backed by facts nor reasons or the provisions of law. Therefore, the order for attachment under Section 146(1) of the Code passed in the impugned order is not sustainable in the eye of law.
Hence, in exercise of the inherent power the order of attachment under Section 146(1) of the Code is set aside and the Criminal Misc. Case is allowed accordingly.