Attachment Order U/S 146 CrPC Can't Be Passed On A Mere Apprehension Of Breach Of Peace: Chhattisgarh High Court

The Chhattisgarh High Court has observed that on mere apprehension of breach of peace, without explaining the circumstances, an attachment order under Section 146 CrPC cannot be passed.

The bench of Justice Goutam Bhaduri further asserted that a Magistrate has to satisfy himself as to whether any 'emergency exists' before he passes an order of attachment under Section 146 CrPC.

It may be noted that Section 146 CrPC deals with the power of the Magistrate to attach the subject of dispute and to appoint a receiver, after making an order under Section 145 (1) CrPC, which deals with the procedure where dispute concerning land or water is likely to cause a breach of peace.

A brief background of Section 145 and Section 146 CrPC

As per Section 145 (1) CrPC, whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute is likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing.

In such order, he has to state the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

Now, once he has made an order under Section 145 (1) CrPC, if the Magistrate, at any time, (i) considers the case to be one of emergency, (ii) or if he decides that none of the parties was then in such possession as is referred to in Section 145 CrPC, (iii) or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.

However, such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.

The case in brief 

Now, in the case at hand, three petitioners had moved the court challenging the order of 3rd Additional Sessions Judge, Balodabazar affirming the order of the Sub Divisional Magistrate (SDM), Balodabazar passed in November 2021, under Section 146 (1) CrPC.

Essentially, the SDM had passed the order under Section 146 (1) CrPC, since there was a dispute with respect to possession of a pieces of land (owned by the petitioners) and there was a chance of breach of peace, the crop/paddy was directed to be kept under the custody of Kotwar.

Challenging this order, the petitioners submitted before the Court that only on the apprehension of breach of peace, the order under Section 146(1) Cr.P.C. cannot be passed.

It was their contention that there has to be substantial material on record, however, the Court below had failed to appreciate the fact that there was no material on record to show whether there was any emergency existing or not. Thus, they argued that the impugned orders deserve to be set aside.

Court's observations

At the outset, the Court observed that under Section 146 of CrPC, a Magistrate has to satisfy himself as to whether any 'emergency exists' before he passes an order of attachment. Further, the Court stressed that in a case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere plea of apprehension of breach of the peace.

"The Magistrate, before passing an order under Section 146, must explain the circumstances why he thinks it to be a case of emergency and further observed that there must be a material on record before Magistrate when the submission of the parties filed, documents produced or evidence adduced," the Court added.

Further, taking into the facts of the case, the Court noted the pieces of land in question were being owned by the petitioners and this fact stood proved in various official records/inquiry reports.

In this regard, stressing that in the impugned order, only on the apprehension of a breach of peace, the order had been passed by the SDM whereby crops were attached and even the revisional Court had failed to appreciate the necessary ingredients in its true perspective.

In the result, the present Cr.M.P. was allowed. The attached crop was directed to be returned to the petitioners within two weeks from the date.

Case title - Tameshwar Sahu and others v. Shrimati Durpati Bai and others 

Case Citation: 2022 LiveLaw (Chh) 33

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