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Judgment
K.B. Sinha, J.—A common question of law if involved in both these revision petitions and so with the consent of the learned counsels for the parties they are disposed of by this common judgment. The facts of the two cases are little different from each other and hence they are put separately.
Criminal Revision No. 777 of 1931
The two petitioners in this case have challenged the order passed by the Sub-divisional Officer, Jamtara on the 25th June, 1981, by which the land in dispute in a proceeding u/s 145 of the Criminal Procedure Code (hereinafter referred to as ''the Code'') was attached under the provision of Section 146(1) of the Code. It appears that some time after initiation of the proceeding u/s 145 of the Code, a petition was filed by the opposite party (first party) that there was apprehension of breach of the peace for cultivation of the disputed land as the cultivation season had set in. After hearing the counsel for the opposite party (first party), the impugned order was passed.
Sri N.K. Agrawal learned counsel appearing on behalf of the petitioners has challenged the order mainly on the ground that the learned Magistrate had not given specific finding that it was a case of emergency and in absence of such finding the order is void. It is also contended that even reasons have not been assigned by the learned Magistrate in support of his order for attachment of the disputed land.
The points raised on behalf of the petitioners have been seriously disputed by Mr. S.R. Ghosal, learned counsel appearing on behalf of sic opposite party. His contention is that it is not necessary to mention the word ''emergency'' by the Magistrate when he decides to attach the land u/s 146 (1) of the Code. According to his submission an order for such attachment can very well be passed if materials are available on the record which can lead to the inference that, in fact, it is a case of emergency.
Criminal Revision No. 650 of 1981
In this case a proceeding u/s 145 of the Code was started by the Subdivisional Officer, Jamtara on 24.6.1981 as the Magistrate found that there was apprehension of breach of the peace regarding dispute over some land. A petition was filed by the opposite party (first party) in the court below on 25.6.1981 to attach the land u/s 146(1) of the Code on the ground that the season for cultivation had commenced and he was apprehending trouble in cultivation of the land. After hearing the opposite party (first party), the Magistrate passed the impugned order.
As in the first case, so in this can also the order has been challenged by Sri N.K. Agrawal, learned counsel appearing on sic of the petitioners on the same ground that neither there was material to hold that it was a case of emergency nor the Magistrate recorded any such finding.
Sri Y.C. Verma, learned counsel appearing on behalf of the opposite party (first party) has strenuously argued in support of the impugned order. His contention is that the Magistrate has given some reasons and nothing more is required for making this order maintainable in the eve of law. It is further submitted that it is not necessary for the Magistrate to give detailed facts for recording a finding that it is a case of ''emergency.'' According to him sufficiency or otherwise of the materials cannot be a subject matter of consideration by a higher court at revisional stage. It is enough that the Magistrate mentions in his order that a situation has arisen that necessitated attachment of the land u/s 146(1) of the Code.
It may be noted that almost in the same terms the learned Magistrate has passed this order under challenge in both the cases. The learned counsels appearing on behalf of the opposite party (first party) in both the cases have led great stress that expression abnormal situation (ASAMANYA STHITI) indicates that the Magistrate had considered the case to be one of emergency.
From the record it appears that the impugned orders were passed in both the cases on 25.6.81 and the learned Magistrate has stated therein that there was tension on account of dispute between the parties over cultivation of land and as such there was apprehension of breach of the peace. It is also stated in the impugned orders that abnormal situation has arisen (ASAMANYA STHITI) and so the land was attached u/s 146(1) of the Code.
There is no doubt that after initiation of a proceeding u/s 145 of the Code, the Magistrate is fully empowered to pass an order u/s 146(1) of the Code at a later stage, if in his opinion, one of the three conditions laid down under the said Section is found to be in existence. Firstly when he considers the case to be one of emergency. Secondly, if he decides that none of the parties was then in the possession as is referred to in Section 145 of the Code and lastly if he is unable to satisfy himself as to which of them was then in such possession of the subject matter of dispute. I find that so far as the last two conditions are concerned, they have no application to the facts and circumstances of this case. It also has not been argued by the learned sic appearing on behalf the parties that this case is covered by either of the last two conditions. After perusal of the order under challenge, it is obvious that the Magistrate is purported to have passed these order having held the case to be one of emergency
The word ''emergency'' mentioned sic Section 146(1) of the Code envisages a situation completely different from one in which there is apprehension of breach of the peace which is one of the basic legal necessity for initiating a proceeding u/s 145 sic the Code. It is not enough merely to state that some abnormal situation had sic The Magistrate, even if he states in his order that in his opinion it was a case of emergency that by itself cannot be held to sic sufficient for passing an order of attachment u/s 146(1) of the Code. The order Should contain the fact and circumstances sic the basis of which a reasonable inference sic be drawn that it was a case of emergency sic The order should contain at least, so much sic of material that it may be possible for a hi sic her court to test objectively whether sic Magistrate had applied his mind for reco sic ding his satisfaction about emergency. sic chanical reproduction of certain terms; sic used in the statute cannot justify a find sic unless there are materials in support of it.
In these two case, as mentioned above, the learned Magistrate has only stated that there was tension between the parties over cultivation of land in dispute that gave rise to an abnormal situation. He has neither placed any material, if available on the record nor there is any discussion regarding any such material which he took into consideration for recording his satisfaction that it was case of emergency.
The learned counsel appearing on behalf of the opposite parties have placed reliance on a Bench decision of this court in the case of Mahendra Tewari v. Mostt. Lal Pari Devi 1981 BBCJ 570. In this case it has been held that even if the order making the attachment is not explicit about the emergency but there are materials to justify the order of attachment, such an orders cannot be interfered with. Reliance has also been placed on a decision of a learned Single Judge, of this Court in the case of Baijnath Choubey and others v. Dr. Ramekbal Choubey and others]1 1981 BLJR 531 where it has been held that the omission on the part of the Magistrate to use the word "emergency" by itself will not vitiate the attachment order, if it otherwise discloses emergency. Undoubtedly, when materials are available on the record regarding situation of emergency, interference with such order is not called for by the revisional court on the ground of omission to use the word emergency by the Magistrate. I have already held that the learned Magistrate has failed to furnish the materials to justify his finding regarding emergency and so the prin- 1. 1981 PLJR 317.ciple laid down in these cases are not at all helpful to the opposite parties.
When the impugned orders are not supported of reasoning and they are completely silent regarding the facts and circumstances which weighed with the Magistrate in coming to the conclusion that the case was one of the emergency, it is difficult to sustain such an order.
In the result the impugned orders are set aside and the petitions are allowed. I will like to add that it is open to the Magistrate to make arrangement for management of the property in accordance with law.
It appears that the proceedings in both the cases u/s 145 of the Code was started some time in the later half of the year. 1981 and so it is high time that they should be disposed of without further delay. The learned counsels appearing on behalf of the parties have assured full co-operation to the Magistrate for this purpose and according to their estimate a period of four months would be sufficient for disposal of the proceeding u/s 145 of the Code. The Magistrate is hereby directed to dispose of the proceeding u/s 145 of the Code within a period of six months from the receipt of this order. Let the records of the two cases be sent forthwith.