Chattisgarh High Court
Tameshwar Sahu vs Shrimati Durpati Bai on 12 April, 2022
1
CRMP No.29 of 2022
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No.29 of 2022
1. Tameshwar Sahu S/o Dujram Sahu Aged About 32 Years
2. Maniram Sahu, S/o Dujram Sahu Aged About 22 Years
3. Nemichand Sahu S/o Dujram Sahu Aged About 20 Years
All R/o Village-Dhaurabhatha, Tehsil-Palari, District-
Balodabazar-Bhatapara (C.G.)
---- Petitioners
Versus
1. Shrimati Durpati Bai W/o Chirakhan Mandhlekar, Sarpanch,
Gram Panchayat, village-Dhaurabhatha, Tehsil-Palari,
District-Balodabazar-Bhatapara (C.G.)
2. Khelawan Sahu S/o Bhojram Sahu Village-Dhaurabhatha,
Tehsil- Palari, District- Balodabazar - Bhatapara,(C.G.)
3. State Of Chhattisgarh Through The District Magistrate-
Balodabazar, District- Balodabazar - Bhatapara,(C.G.)
---- Respondents
For Petitioners Mr. Shobhit Koshta, Advocate
For Respondents No.1&2 Mr. Amartya Rajwade, Advocate
For Respondent/State Ms. M. Asha, Panel Lawyer
Hon'ble Mr. Justice Goutam Bhaduri
Order on Board
12-4-2022
1. Present petition is against the order dated 21-12-2021
(Annexure-P/6) passed by the Third Additional Sessions
Judge, Balodabazar, in Cr. Rev.No.52/21 whereby the order
CRMP No.29 of 2022
of the Sub Divisional Magistrate (SDM), Balodabazar dated
12-11-2021 (Anneuxre-P/5) passed under Section 146 (1)
Cr.P.C. has been affirmed.
2. Brief facts of this case are that the petitioner No.1 is claiming
himself as bhumiswami of land bearing khasra No.206/54
area 0.162 hectares and khasra No.206/58 area 0.186
hectares, total area admeasuring 0.348 hectares. Likewise,
the petitioners No.2 & 3 are also claiming themselves as
bhumiswami of land bearing khasra No.273/14 area 1.618
hectares. With regard to their respective claim, the
petitioners rely on Form B-1 kistband katoni [year 2019-20]
{Annexure-P/1).
3. To consider the said claim of the petitioners, the SDM vide its
memo dated 20-10-2021 (Annexure-P/3) directed the
Tahsildar-cum-Executive Magistrate, Palari and Station
House Officer, Police Station Gidhpuri to submit the enquiry
report. In compliance of the same, it was reported that prior
to two months of incident the petitioners were in possession
of the subject land. In the meanwhile, the petitioner
Tameshwar Sahu filed a civil suit bearing No.54-A/2021 and
the petitioners Maniram & Nemichand filed a civil suit
bearing No.55-A/2021 for declaration of title against the
CRMP No.29 of 2022
respondents. In the said suits, status quo order was passed on
14-12-2021 (Annexure-P/4). Subsequently, on 12-11-2021
(Annexure-P/5) the SDM has passed the order that since there
is a dispute with respect to possession and chance of breach
of peace, the crop/paddy was directed to be kept under the
custody of Kotwar.
4. Learned counsel for the petitioners would submit that only on
apprehension of breach of peace, the order under Section
146(1) Cr.P.C. cannot be passed. There has to be substantial
material on record and the Court below failed to appreciate
the fact that there was no material on record to show that
whether there was any emergency exist or not. Thus, the
impugned orders deserve to be set aside.
5. On the other hand, learned counsel for the respondents No.1
& 2 while supporting the impugned orders would submit that
the land on which the claim is made by the petitioners is, in
fact, the Government land and hence the petitioners are not
entitled to any relief.
6. I have heard learned counsel appearing for the parties and
perused the papers annexed with the petition.
CRMP No.29 of 2022
7. The order of learned SDM dated 12-11-2021 records that
since the petition under Section 145 (1) is pending and
without there being any enquiry, no finding can be arrived as
to who had sow the crop, as such, since it may lead to
dispute, crop of the subject land would be seized. The
revisional Court affirmed the said order.
8. With respect to prima facie ownership of the land the
petitioners filed revenue document i.e. Form B-1 kistband
katoni [year 2019-20] {Annexure-P/1), which records the
name of the petitioners. To ascertain the possession over the
subject land prior to dispute pursuant to memo dated 20-10-
2021 (Annexure-P/3) of the SDM, the enquiry report was
submitted on 26-10-2021. Bare reading of the same would
manifest that prior to two months of the dispute the subject
lands were in possession of the petitioners. The same fact also
finds support from the order dated 14-12-2021 passed by the
Civil Judge Class-II, Balodabazar, in a civil suit
Nos.54-A/2021 & 55-A/2021 wherein it has been observed
that prior to report dated 26-10-2021 the petitioners were in
possession of the subject land. Now coming to the order
dated 12-11-2021 it shows that the SDM has observed that
since the detailed enquiry is required, therefore, at this
juncture, the ownership cannot be decided. The order of
CRMP No.29 of 2022
SDM further records that since the ownership and the crop
over the said land may lead to dispute as such there are
chances of breach of peace, therefore, the crop be
attached.
9. In respect of such attachment of properties while dealing in a
matter under Section 145 Cr.P.C., the Hon'ble Supreme
Court in the matter of Ashok Kumar v State of
Uttarakhand and Others1 has laid down the principle at
paras 10 & 11 of the judgment which are as under :
10) The ingredients necessary for
passing an order under Section 145 (1) of
the Code would not automatically attract
for the attachment of the property. Under
Section 146, a Magistrate has to satisfy
himself as to whether emergency exists
before he passes an order of attachment. A
case of emergency, as contemplated under
Section 146 of the Code, has to be
distinguished from a mere case 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. In other words, to infer a
situation of emergency, there must be a
material on record before Magistrate when
the submission of the parties is filed,
documents produced or evidence adduced.
11) We find from this case there is
nothing to show that an emergency exists
so as to invoke Section 146(1) and to attach
the property in question. A case of
emergency, as per Section 146 of the Code
1 2013 (3) SCC 366
CRMP No.29 of 2022
has to be distinguished from a mere case of
apprehension of breach of peace. When the
reports indicate that one of the parties is in
possession, rightly or wrongly, the
Magistrate cannot pass an order of
attachment on the ground of
emergency......
10. Applying the aforesaid principle to the facts of the present
case, it shows that under Section 146, a Magistrate has to
satisfy himself as to whether any 'emergency exists' before
he passes an order of attachment. 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.
11. Reading of impugned order shows that only on apprehension
of a breach of peace, the order dated 12-11-2021 has been
passed by the SDM whereby crops have been attached. Even
the revisional Court also failed to appreciate the necessary
ingredients in its true perspective, as has been stated supra.
Accordingly, both the orders dated 12-11-2021 (Annexure-
P/5) and 21-12-2021 (Annexure-P/6) are quashed.
CRMP No.29 of 2022
12. In the result, the present Cr.M.P. is allowed. The attached
crop be returned to the petitioners within two weeks from the
date of receipt of copy of this order.
Sd/-
(Goutam Bhaduri)
Judge
Gowri
CRMP No.29 of 2022
HEAD NOTE
On mere apprehension of breach of peace
without explaining the circumstances the
attachment order under Section 146 CrPC cannot
be passed.
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