Sono Gope and Others vs Rameshwar Yadav and Others

M.P. Varma, J.—The sole ground on which the impugned order dated 1.4.81 attaching the land in dispute has been challenged is that the learned Magistrate has not assigned any reason for taking emergency measures u/s 146(1) of the Code of Criminal Procedure. A proceeding u/s 144 of the Code of Criminal Procedure (hereinafter referred to as the Code) was initiated on 2.7.1979 between the parties which was, later on, converted into one u/s 145 of the Code and the learned Magistrate thereafter, on receipt of a report from the Anchal Adhikari, proceeded to attach the disputed property u/s 146(1) of the Code.

Learned Counsel for the opposite party has attempted to support the impugned order stating that the learned Magistrate obviously felt satisfied regarding the emergency on perusal of the report of the Anchals Adhikari. The impugned order, however, does not indicate in the least that the learned Magistrate considered that there was any such emergency which necessitated for taking action under clause 1 of Section 146 of the Code. There is no mention of the fact that the Anchal Adhikari made any such report or asked the Court for attachment of the lands in dispute. It may also be noted that the operation of the impugned order was stayed, and the properties were not custodia legis, and that no untowards incident reported to have happened during the period. The order, in question, since suffers from infirmity and also in the circumstances referred to above, it is fit to be set aside.

In the result, the application succeeds. The order impugned is set aside. The learned Magistrate, before whom the proceeding u/s 145 of the Code is pending for disposal if on hearing the parties finds materials and feels satisfied may take action afresh under Clause 1 of Section 146 of the Code.