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2019 Legal Eagle (CHH) 241 : 2019 Gojuris (CHH) 241
IN THE CHHATTISGARH HIGH COURT
Equivalent Citations :
[Before : Goutam Bhaduri]
Saeed Khan, S/o. Hatim Khan
vs.
Atul Kumar Sahu and Others
Case No. : CRMP No. 2161 of 2018
Date of Decision : 24-04-2019
(A) Undoubtedly, it goes to point out that the dispute exists in between the parties in relation to the
possession of the disputed property, which is corroborated by the police report dated 27.02.2018
& Apart from the aforesaid fact from the inception of case, the Sub Divisional Magistrate found
the petitioner was in possession whether such possession was right or wrong it was not within the
domain by Sub Divisional Magistrate to go beyond possession. In view of the aforesaid discussion,
the order dated 05.10.2018 cannot be allowed to continue, therefore is quashed and the petition is
allowed. (B) Undoubtedly, it goes to point out that the dispute exists in between the parties in
relation to the possession of the disputed property, which is corroborated by the police report
dated 27.02.2018 & Apart from the aforesaid fact from the inception of case, the Sub Divisional
Magistrate found the petitioner was in possession whether such possession was right or wrong it
was not within the domain by Sub Divisional Magistrate to go beyond possession. In view of the
aforesaid discussion, the order dated 05.10.2018 cannot be allowed to continue, therefore is
quashed and the petition is allowed. Further, taking into consideration the period of pendency and
nature of dispute, in the interest of justice, the Sub Divisional Magistrate is directed to conclude the
matter within a period of three months from the date of receipt of a copy of this order.
Advocates Appeared :
For the Appellant:- Mr. Awadh Tripathi, Advocate
For the Respondent:- Mr. Saurabh Sharma, Advocate Ms. S. Harshita, Advocate Mr. Anant Bajpai, Panel Lawyer
Statutes Referred :
1. Code of Criminal Procedure -- S.482
2. Code of Criminal Procedure -- S.145
3. Code of Criminal Procedure -- S.146(1)
4. Code of Criminal Procedure -- S.146
5. Code of Criminal Procedure -- S.146(2)
Cases Referred :
1. Ashok Kumar v. State of Uttarakhand & Ors. (2013) 3 SCC 366 .
JUDGMENT/ORDER :
1. The instant petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for
brevity “Cr.P.C.”) against the order dated 05.10.2018 passed by the Sub Divisional Magistrate in
Case No.694/2007 (State v. Atul Sahu & Another). By such order, the Sub Divisional Magistrate
has passed an attachment of the property which is subject matter of the lis and further has issued a
direction to the Station House Officer, Police Station Ganj to be appointed as Receiver of the said
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property.
2. The relevant necessary facts for adjudication of the case is that one complaint/ istegasa was
prepared by the Station House Officer, Police Station Ganj on 25.10.2017 before the Sub
Divisional Magistrate, Raipur.
The said proceeding emanated from a complaint made by the Respondent No.1 Ashok Sahu that
the Petitioner Saeed Khan has forcefully and wrongfully has taken over the possession of the Shop
& Godown constructed over Plot No.6, 7, 8 & 9 situated at Khasra No.475, Maudahapara, Raipur.
It was alleged that the said possession was taken by breaking open the lock. The Sub Divisional
Magistrate subsequently vide order dated 13.02.2009 passed an order after enquiry under Section
145 of Cr.P.C. on the basis of the statement and document available on the record and the Sub
Divisional Magistrate found the possession of the petitioner over the disputed property, which was
two months prior to the date on which the complaint was received. The said order when was
subject of challenge was set aside and the case was remanded back to the Sub Divisional
Magistrate for fresh consideration after affording an opportunity of hearing by an order dated
11.01.2011 passed in Criminal Revision No.231/2010.
The petitioner herein subsequently alleged that the said property was sold to the Respondent No.2
namely Ajay Bajaj by the Respondent No.1 Ashok Sahu. Subsequently, the Respondent No.1
moved an application on 28.10.2015 before the Sub Divisional Magistrate for appointment of
Receiver and attachment of the property. The said application was duly replied by the Petitioner.
Subsequently, the report was called from the police twice and on the basis of the police report
dated 27.02.2018 & 04.06.2018, the Sub Divisional Magistrate found that there is all likelihood of
breach of peace and the case is to be one of the emergency, thereby the impugned order was
passed.
3. Learned counsel for the Petitioner would submit that irrespective of the ownership of property
undisputedly the possession of the Petitioner existed over the disputed property. It is further
submitted that as per the averments of the Respondent alone, the Petitioner was in possession.
Consequently, the order of attachment and appointment of Receiver under Section 146 of Cr.P.C.
cannot be issued. Reliance was placed in the case of Ashok Kumar v. State of Uttarakhand & Ors.
reported in (2013) 3 SCC 366 and would submit in the likewise issue unless the eminent danger
exists, the impugned order of the like nature cannot be passed.
4. Per contra, learned counsel appearing for the Respondents supported the order of the Sub
Divisional Magistrate and stated that Petitioner is not the owner of the disputed property and the
order is well merited which do not require any interference. It is further contended that the
Petitioner in view of order under Section 145 of Cr.P.C. is enjoying the valuable fruits of the
property, which belong to the Respondent No.1 & 2 which in turn is causing great hardship and
loss to the Respondents.
5. I have heard learned counsel appearing for the parties and perused the record.
6. The principles as has been laid down by the Supreme Court enumerates that attachment under
Section 146 of the Cr.P.C. can only be made by the Sub Divisional Magistrate, if he considers the
case to be of emergency, when he finds that none of the parties were in possession as is referred in
Section 145 of Cr.P.C. or he is unable to satisfy himself as to which of the contending parties were
in possession of the subject matter of the disputed land.
7. The Supreme Court in case of Ashok Kumar (supra) in para 10 & 11 has held 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 filed, documents produced or evidence adduced.
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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
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 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 SDM to decide.
8. Now reverting to the facts of this case, record shows that the matter when came up before the
Sub Divisional Magistrate on 25.10.2007, when the complaint was filed by the concerned police,
initially the possession of the petitioner was found. Subsequently, after the remand, the issue was
pending adjudication and subsequent impugned order of attachment was passed and the
appointment of Receiver was passed under Section 146(1) & (2) of Cr.P.C. on 05.10.2018 after the
period of 11 years from the inception of this case, after examination of the material available on
record.
Undoubtedly, it goes to point out that the dispute exists in between the parties in relation to the
possession of the disputed property, which is corroborated by the police report dated 27.02.2018 &
04.06.2018. However, the fact mentioned above there is likelihood of breach of peace has been
made recorded as a routine manner, but nothing is there to substantiate the same. Apart from the
aforesaid fact from the inception of case, the Sub Divisional Magistrate found the petitioner was
in possession whether such possession was right or wrong it was not within the domain by Sub
Divisional Magistrate to go beyond possession. The entire perusal of the order do not show that
any emergency has been reflected as per the ratio laid down by the Supreme Court (supra). In
order to pass attachment under Section 146 (1) of Cr.P.C. there has to be specific emergency is
reflected on the face of it which otherwise must exist. The statement which is recorded of
Respondent No.2 would show that the complaint was made that the Petitioner has raised illegal
construction without any permission from the Municipal Corporation. Thereby the possession of
the Petitioner has been admitted which can relate back right to 11 years back when the initial
proceeding started. Therefore, what was the emergency existed to pass such order under Section
146 for attachment is completely missing.
9. In view of the aforesaid discussion, the order dated 05.10.2018 cannot be allowed to continue,
therefore is quashed and the petition is allowed.
Further, taking into consideration the period of pendency and nature of dispute, in the interest of
justice, the Sub Divisional Magistrate is directed to conclude the matter within a period of three
months from the date of receipt of a copy of this order. The parties shall appear before the Sub
Divisional Magistrate on 25th June, 2019.
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