[S.145 CrPC] Attachment Order Cannot Be Passed If There Was No Evidence Of Likelihood Of Breach Of Peace: Meghalaya High Court

The Meghalaya High Court has observed that a Magistrate cannot base an attachment order under Section 146 CrPC solely on the inability to determine the possession of the disputed land, if there was no evidence of a likelihood of breach of peace as provided under Section 145 CrPC.

The respondent had filed a FIR against the petitioner claiming that petitioner was attempting to forcibly occupy her land. After the investigation, police forwarded a report to the Executive Magistrate to initiated proceedings under Section 145 Cr.PC, provides for procedure where dispute concerning land or water is likely to cause breach of peace.

The Executive Magistrate after initiating the proceedings ordered the attachment of the land in question under Section 146(1) Cr.PC. The orders prohibited the parties from engaging in any economic activities on the land until the demarcation process was complete.

The petitioner contended that the order is incorrect as Executive Magistrate did not record that there was any likelihood of breach of peace between the parties as provided under Section 145 Cr.PC.

Justice B. Bhattacharjee noted that while passing the order, the Executive Magistrate did not record “any finding basing on existing factual situation to ascertain as to which party was in possession of the disputed land at the relevant point of time.” The Court stated that the Magistrate should have determined the question of possession over the disputed land. Instead, the Magistrate was looking for documentary evidence to determine the claims of the parties.

The Court referred to Section 145(4) Cr.PC which provides that the question of possession cannot be determined with reference to merits of the case. It held “in a proceeding u/s 145 Cr.PC the dispute with regard to possession has to be decided on the basis of the statements put in, evidence recorded and hearing the parties and not basing on any documentary proof of ownership.”

It noted that there must be a likelihood of breach of preach as provided under Section 145 Cr.PC before passing any order under Section 146 Cr.PC.

“If there is no direct evidence of any likelihood of breach of peace, the inability of the Magistrate concerned to come to a finding as to which party is in possession of the disputed land, cannot be sole ground for passing of order of attachment” it held.

As there was no finding that the continuing situation between the parties would result in breach of peace, the Court held the order of the Executive Magistrate to be unlawful.

The Court thus set aside the order passed by the Executive Magistrate.

Case title: Shri Minondro Arengh vs. Talika T. Sangma, Crl. Rev. P. No. 6 of 2022

Citation: 2024 LiveLaw (Meg) 15

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