ASHOK KUMARversusSTATE OF UTTARAKHAND & ORS.

                      [2012] 13 S.C.R. 971


                        ASHOK KUMAR                                   A
                                 v.
              STATE OF UTTARAKHAND & ORS.
              (Criminal Appeal No. 2038 of 2012)
                     DECEMBER 13, 2012
                                                                      B
     [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

      Code of Criminal Procedure, 1973:

       ss.145 and 146 (1) - Application u/s. 145 - Praying for        c
  attachment of property - Civil suit and application for interim
  injunction in respect of the same property pending before civil
  court - Police enquiry report stating that one of the parties was
  in possession - SOM passing order for attachment - Order
  confirmed by High Court - On appeal, held: The SOM had
  wrongly invoked powers u/s. 146(1) as there is nothing to           D
  show that an emergency existed so as to attach the property
· - He could not have passed order of attachment on the ground
  of emergency when the reports indicated that one of the
  parties was in possession - The issue of possession, since
  was pending, it was for the civil court to decide the issue.        E
      ss. 145 and 146 (1) - Scope of - Held: The object of s.
 145 is merely to maintain law and order and to prevent breach
 of peace by maintaining one or other of the parties in
 possession - The scope of enquiry uls. 145 is in respect of F
 actual possession without reference to the merits - Order of
 attachment u/s. 146(1) can be passed only in case of
 emergency - s. 146 can only be read in the context of s. 145
 - The ingredients necessary for passing order u/s. 145(1)
 would not automatically attract for attachment of property - G
 Case of emergency has to be distinguished from a mere case
 of apprehension of breach of peace - To infer a situation of
 emergency, there must be material on record before
 Magistrate.
                              971                              H
    972      SUPREME COURT REPORTS             [2012] 13 S.C.R.


A       The second respondent filed a suit against the
  appellant and third respondent as defendants, praying for
  a decree of temporary injunction, restraining them from
  interfering with their peaceful enjoyment and possession
  of the property in question. An application for interim
B injunction was also filed. The suit and the application are
  still pending.

      Thereafter, the second respondent filed an
  application u/s. 145 Cr.P.C. in respect of the same
  property, for an order of attachment of the property in
C question. As per enquiry report by the police, the
  appellant was in possession of the property and there
  was possibility of breach of peace. SOM, after referring
  to the police report passed an order attaching the
  property u/s. 146(1) Cr.P.C. The order of SOM was
D confirmed by the High Court. Hence the present appeal.

          Disposing of the appeal, the Court

       HELD: 1. The SOM has not properly appreciated the
  scope of Sections 145 and 146(1), Cr.P.C. The object of
E Section 145, Cr.P.C. is merely to maintain law and order
  and to prevent breach of peace by maintaining one or
  other of the parties in possession, and not for evicting
  any person from possession. The scope of enquiry u/
  s.145 is in respect of actual possession without reference
F to the merits or claim of any of the parties to a right to
  possess the subject of dispute. [Para 7] [976-E-F]
        2. The SOM has wrongly invoked the powers under
  Section 146(1),Cr.P.C. Under Section 146(1), a Magistrate
G can pass an order of attachment of the subject of dispute
  if it be a case of emergency, or if he decides that none of
  the parties was in such possession, or he cannot decide
  as to which of them was in possession. Sections 145 and
  146 Cr.P.C. together constitute a scheme for the
H resolution of a situation where there is a likelihood of a
  ASHOK KUMAR v. STATE OF UTTARAKHAND &                973
                   ORS.
breach of the peace and Section 146 cannot be separated       A
from Section 145. It can only be read in the context of
Section 145. If after the enquiry under Section 145, the
Magistrate is of the opinion that none of the parties was
in actual possession of the subject of dispute at the time
of the order passed under Section 145(1) or is unable to      B
decide which of the parties was in such possession, he
may attach the subject of dispute, until a competent court
has determined the right of the parties thereto with regard
to the person entitled to possession thereof. [Para 12)
[978-E-H]                                                     C
    3. The ingredients necessary for passing an order u/
s.145(1) Cr.P.C. 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                 D
attachment. A case of emergency, as contemplated u/
s.146, 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            E
emergency. To infer a situation of emergency, there must
be a material on record before Magistrate when the
submission of the parties filed, documents produced or
evidence adduced. [Para 13) [979-A-C]
     4. In the present case, there is nothing to show that    F
an emergency existed so as to invoke Section 146(1) and
to attach the property in question. 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. The order              G
acknowledges the fact that the appellant had started
construction in the property in question, therefore,
possession of property was with the appellant, whether
it was legal or not, was not for the SOM to decide. [Para
14) [979-D-F]                                                 H
    974      SUPREME COURT REPORTS             [2012] 13 S.C.R.


A      5. The respondent had also filed a civil suit for
  injunction before Civil Judge and an application for
  interim injunction is also pending, on which the civil court
  has issued only a notice. An Amin report was called for
  and Amin submitted its report. Civil suit was filed prior in
B point of time, it is for the civil court to decide as to who
  was in possession on the date of the filing of the suit.
  Civil Court is directed to pass final orders on the interim
  application filed by the second respondent. [Paras 15 and
    16] [979-F-G; 980-C]
c       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2038 of 2012.

      From the Judgment & Order dated 27.03.2012 of the High
  Court of Uttarakhand at Nainital in C.M.P. (C482) No. 1029 of
D 2010.

         Ambrish Kumar, Ajai Kumar Bhatia, Sunil Kumar Jain for
    the Appellant.

          Vivek Gupta, Saket Agarwal for the Respondents.
E
          The Judgment of the Court was delivered by

          K.S. RADHAKRISHNAN, J. 1. Leave granted.

       2. We are, in this case, concerned with the validity of an
F Order of attachment passed under Section 146(1) of the Code
  of Criminal Procedure by Sub Divisional Magistrate (SOM),
  Haridwar on 25.11.2009 attaching property situated in khasra
  No. 181 admeasuring 0.400 hectares situated at Gram
  Subhash Garh, Pargana Jawala Pur, Tehsil and District
G Haridwar. The above-mentioned order was affirmed by the
  High Court of Uttarakhand at Nainital in Criminal Misc.
  Application (C482) No. 1029 of 2010 dated 27.03.2012.

      3. Mona Sharma, the second respondent herein, mother
H of minor children, preferred O.S. No. 168 of 2009 before the
  ASHOK KUMAR v. STATE OF UTTARAKHAND &                    975
       ORS. [K.S. RADHAKRISHNAN, J.]
Court of Civil Judge (J.D.) Haridwar with the appellant and third A
respondent as defendants praying for a decree of temporary
injunction restraining them from interfering with their peaceful
enjoyment and possession of the above-mentioned and few
other items of properties. The suit was instituted on 02.09.2009.
An application was also preferred under Order XX.XIX Rules 1 B
and 2 read with Section 151 of the Code of Civil Procedure
for an order of interim injunction. The Civil Court did not grant
any interim injunction, but only ordered notice to the
respondents on 14.9.2009.

     4. Mona Sharma later filed an application under Section
                                                                  c
145, Cr.P.C. on 19.9.2009 in respect of the disputed property
before SOM for an .order of attachment of the property in
question. An enquiry was conducted through the Pathri P.S.,
District Haridwar and Sub-Inspector of Police who submitted
the report dated 01.10.2009 before the SOM, Haridwar. It was D
indicated in the report that house of Ashok Kumar is situated
in the land in dispute where he has undertaken some,
construction. Further, it was also opined that the possibility of
breach of peace in the locality could also be not ruled out.
Meanwhile, in the civil suit, after conducting a local inspection, E
a report was submitted by the Amin on 21.11.2009 stating that
the plaintiff is in possession of the property and the construction
is going on. After referring to the report of the Sub-Inspector
dated 01.10.2009, SDM Haridwar passed the impugned order
dated 25.11.2009 attaching the property under Section 146(1 ), F
Cr.P.C., the validity of which is under challenge in these
proceedings.
     5. Shri Ambrish Kumar, learned counsel appearing for the
appellant, submitted that the SOM has committed a grave error G
in passing an order under Section 146(1 }, Cr.P.C. attaching the
property in question since possession of the property by the
appellant was not disputed by the respondent while the civil suit
was filed, so also when an application under Section 145 was
preferred. Learned counsel submitted that the SDM has H:
    976      SUPREME COURT REPORTS                [2012] 13 S.C.R.


A   exceeded its jurisdiction in passing an order dated 25.11.2009,
    when the same: issue is pending consideration in a civil court.
    Learned counsel also pointed out that the respondent could not
    get an order of injunction from the civil court, hence he invoked
    the jurisdiction of the SOM under Section 146(1 ), Cr.P.C. and
B   got an order of attachment of the property. Learned counsel
    submitted that the SOM has committed a gross illegality in
    passing the order, when possession of the property by the
    appellant has not been disputed.

          6. Shri Vivek Gupta, learned counsel appearing for the
C   respondents, on the other hand, submitted that there is no
    illegality in the order passed by the SOM attaching the property
    under Section 146(1), Cr.P.C., since there is dispute regarding
    the possession of the property in question and tension is
    existing and peace can be breached at any time. Learned
0   counsel submitted that there is no error in the order passed by
    the High Court, confirming the order of the SOM.

         7. We are of the view that the SOM has not properly
    appreciated the scope of Sections 145 and 146(1), Cr.P.C.
E   The object of Section 145, Cr.P.C. is merely to maintain law
    and order and to prevent breach of peace by maintaining one
    or other of the parties in possession, and not for evicting any
    person from possession. The scope of enquiry under Section
    145 is in respect of actual possession without reference to the
F   merits or claim of any of the parties to a right to possess the
    subject of dispute.

         8. We may notice, in the instant case, the application was
    preferred by the respondent under Section 145, Cr.P.C. and
    on that application, a report was called for and the Sub-
G   Inspector of Police submitted its report before the SOM on
    01.10.2009. It is stated in the enquiry report that the Sub-
    Inspector of the village went to Subhashgarh and noticed that
    even though the landed property stood in the name of Mona
    Sharma yet it was found that Ashok Kumar, appellant herein
H   was in possession of the land in question in khasra No. 181.
  ASHOK KUMAR v. STATE OF UTTARAKHAND &                     977
       ORS. [K.S. RADHAKRISHNAN, J.]

The relevant portion of the report reads as follows:                A

            "It is submission of applicant Mona Sharma that
     above both Ashok Kumar and Narendra Kumar have taken
     possession over her land and above both have stated that
     they have purchased land from Bal Krishan husband of 8
     Mona Sharma whereas, this land comes in the category
     of 10(Ka), which cannot be sold/purchased ................... ln
     l<1nd there is situated under constructed house of Ashok
     Kumar in present time and eucalyptus and mangoes trees
     of Narendra Kumar s/o Jairam, r/o Subhashgarh are C
     standing."

     9. Further, it is relevant to note that even in the SOM order
dated 25.11.2009, the possession of the property by the
appellant - Ashok Kumar has been noticed. The operative
portion of the impugned order dated 25.11.2009 reads as D
follows:

           "Applicant wants to take possession over the
    property in question, but opp. Party Ashok in forcible
    manner does not leave possession and there is full tense E
    of spot taking possession, the peace can break at any
    time, therefore, the property in question should be attached.
    The property in question was given to father in law of the
    applicant on lease by State Government."

     10. The order also records the stcttement of learned counsel   F
of the appellant, which reads as follows:

          "The applicant has no possession over the property
    in question. Applicant accepts the possession of opposite
    party Ashok on property in question, there is not any G
    dispute regarding possession."

    11. The SOM then stated as follows:

          "In view of report of Sub Inspector P.S. Pathri also
                                                                    H
    978       SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A         there is dispute in parties regarding possession of
          property in question on spot and the tension is existing and
          peace can breach at any time hence, it appears just and
          proper to attach the property in question during hearing
          and to give any (sic) anyone for maintaining peace law and
B         order situation on spot."

          The operative portion of the order, further, reads as follows:

                 "Hence, property in question khasra No. 181, rakba
          0.400 hectares situated in mauja Subhashgarh stands
C         attached u/s 146(1) Cr.P.C. S.O. Pathri is directed that he
          may go on spot and by taking the property in question in
          his possession ensure giving the same in (sic) of anyone
          and sent (sic) in this court at any time before fixed date
          30.12.2009. Put up on 30.12.2009 for written statement
D         of first party."

         12. The above order would indicate that the SOM has, in
    our view, wrongly invoked the powers under Section
    146(1),Cr.P.C. Under Section 146(1), a Magistrate can pass
E   an order of attachment of the subject of dispute if it be a case
    of emergency, or if he decides that none of the parties was in
    such possession, or he cannot decide as to which of them was
    in possession. Sections 145 and 146 of the Criminal
    Procedure Code together constitute a scheme for the resolution
    of a situation where there is a likelihood of a breach of the
F   peace and Section 146 cannot be separated from Section 145,
    Cr.P.C. It can only be read in the context of Section 145,
    Cr.P.C. If after the enquiry under Section 145 of the Code, the
    Magistrate is of the opinion that none of the parties was in actual
    possession of the subject of dispute at the time of the order
G   passed under Section 145(1) or is unable to decide which of
    the parties was in such possession, he may attach the subject
    of dispute, until a competent court has determined the right of
                                   '
    the parties thereto with regard to the person entitled to
    possession thereof.
H
  ASHOK KUMAR v. STATE OF UTTARAKHAND &                         979
       ORS. [K.S. RADHAKRISHNAN, J.]

     13. The ingredients necessary for passing an order under           A
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,               B
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              c
before Magistrate when the submission of the parjies filed,
documents produced or evidence adduced.

     14. 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            D
Section 146 of the Code 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. The order acknowledges the fact that           E
Ashok Kumar has started construction in the property in
question, therefore, possession of property is with the appellant
- Ashok Kumar, whether it is legal or not, is not for the SOM to
decide.
                                                                        F
      15. We also notice that the respondent herein has filed a
civil suit for injunction before Civil Judge (J.D.) Haridwar on
02.09.2009 and an application for interim injunction is also
pending, on which the civil court has issued only a notice. An
Amin report was called for and Amin submitted its report on             G
21.11.2009. Civil suit was filed prior in point of time, it is for
the civil court to decide as to who was in possession on the
date of the filing of the suit. In any view, there is nothing to show
that there was an emergency so as to invoke the powers under
Section 146(1) to attach the property, specially, when the civil
                                                                        H
    980      SUPREME COURT REPORTS               [2012] 13 S.C.R.


A court is seized of the matter. Under such circumstances, we
  are inclined to set aside the order passed by the SOM dated
  25.11.2009 and the order of the High court dated 27.03.2012.

        16. Learned counsel appearing for the appellant submitted
  that he will not change the character of the property or create
8
  third party rights in respect of the property in question till the
  civil court passes final orders on the application filed by the
  respondent for temporary injunction. The submission of the
  learned counsel is recorded and we direct the civil court to pass
  final orders on the interim application filed by the respondent
C for injunctiqn. We make it clear that we have also not expressed
  any final opinion on the contentions raised by the learned
  counsel. We have however found that no ground exists to
  attach the property under Section 146, Cr.P.C.

D         17. The appeal is disposed of, as above.

    K.K.T.                                    Appeal disposed of.