Case Note & Summary
The appellants, Santram and others, filed an appeal against an order passed by the Sub-Divisional Magistrate, Purna, under Section 145 CrPC, attaching the property in dispute and appointing a Receiver. The dispute pertained to agricultural land between the appellants and respondent nos. 1 and 2, who are relatives. The Magistrate passed the order without issuing a preliminary order under Section 145(1) CrPC and without recording satisfaction that there was an emergency warranting attachment under Section 146 CrPC. The High Court held that the Magistrate failed to comply with the mandatory requirements of Sections 145 and 146 CrPC. The Court observed that the Magistrate did not record any satisfaction that a dispute likely to cause breach of peace existed, nor did he issue notice to the parties before passing the attachment order. The Court set aside the impugned order and directed the Magistrate to proceed afresh in accordance with law, after giving an opportunity of hearing to all parties.
Headnote
A) Criminal Procedure Code - Section 145 CrPC - Preliminary Order - Necessity of Recording Satisfaction - The Magistrate must record satisfaction that a dispute likely to cause breach of peace exists before issuing a preliminary order under Section 145(1) CrPC. In the absence of such satisfaction, the proceedings are without jurisdiction. (Paras 5-7) B) Criminal Procedure Code - Section 146 CrPC - Attachment of Property - Condition of Emergency - Attachment under Section 146(1) CrPC can only be ordered if the Magistrate considers the case to be one of emergency. The mere existence of a dispute does not justify attachment; there must be a specific finding of emergency. (Paras 8-10) C) Criminal Procedure Code - Section 145 CrPC - Notice to Parties - Requirement of Hearing - Before passing any order under Section 145 CrPC, the Magistrate must issue notice to the parties and give them an opportunity of being heard. An order passed without notice is violative of principles of natural justice. (Paras 11-12)
Issue of Consideration
Whether the Magistrate was justified in initiating proceedings under Section 145 CrPC and ordering attachment under Section 146 CrPC without satisfying the condition of emergency and without issuing a preliminary order under Section 145(1) CrPC.
Final Decision
The appeal is allowed. The impugned order passed by the Sub-Divisional Magistrate, Purna, under Section 145 CrPC is set aside. The matter is remanded back to the Magistrate to proceed afresh in accordance with law, after giving an opportunity of hearing to all parties.
Law Points
- Section 145 CrPC
- Section 146 CrPC
- emergency condition
- attachment of property
- dispute likely to cause breach of peace
- preliminary order
- notice to parties
