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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2038         OF 2012 @  Special Leave Petition (Crl.) No. 3932 of 2012

Ashok Kumar .. Appellant(s)

Versus

State of Uttarakhand & Ors.        .. Respondent(s)

J U D G M E N T

K. S. Radhakrishnan, J.

1. Leave granted.

2. We are,  in  this  case,  concerned with  the  validity  of  an  

Order of attachment passed under Section 146(1) of the Code  

of  Criminal  Procedure  by  Sub  Divisional  Magistrate  (SDM),  

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  Haridwar.   The  

above-mentioned  order  was  affirmed  by  the  High  Court  of

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Uttarakhand at Nainital in Criminal Misc. Application (C482) No.  

1029 of 2010 dated 27.03.2012.   

3. Mona Sharma, the second respondent herein,  mother of  

minor children, preferred O.S. No. 168 of 2009 before the Court  

of  Civil  Judge  (J.D.)  Haridwar  with  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  above-mentioned  and  few  

other  items  of  properties.    The  suit  was  instituted  on  

02.09.2009.   An  application  was  also  preferred  under  Order  

XXXIX Rules 1 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 145,  

Cr.P.C. on 19.9.2009 in respect of the disputed property before  

SDM 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

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dated 01.10.2009 before the SDM, Haridwar.  It was 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, 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),  

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 SDM has committed a grave error  

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

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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 SDM under Section 146(1), Cr.P.C. and  

got an order of attachment of the property.   Learned counsel  

submitted  that  the  SDM 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  

respondents,  on  the  other  hand,  submitted  that  there  is  no  

illegality in the order passed by the SDM 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  

counsel submitted that there is no error in the order passed by  

the High Court, confirming the order of the SDM.

7. We  are  of  the  view  that  the  SDM  has  not  properly  

appreciated  the  scope  of  Sections  145  and  146(1),  Cr.P.C.

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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  

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-Inspector  

of Police submitted its report before the SDM 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 was in possession of  

the land in question in khasra No. 181.  The relevant portion of  

the report reads as follows:

“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

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husband of Mona Sharma whereas, this land  comes  in  the  category  of  10(Ka),  which  cannot  be sold/purchased...................In  land  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 standing.”

9. Further, it is relevant to note that even in the SDM 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  

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  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 statement of learned counsel  

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 dispute  regarding possession.”

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11. The SDM then stated as follows:

“In view of report of Sub Inspector P.S.  Pathri  also  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 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  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 of first party.”

12. The above order would indicate that the SDM has, in our  

view, wrongly invoked the powers under Section 146(1),Cr.P.C.  

Under  Section  146(1),  a  Magistrate  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

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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 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 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.

13. 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

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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.  

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.

15. We also notice that the respondent herein has filed a civil  

suit  for  injunction  before  Civil  Judge  (J.D.)  Haridwar  on

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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  

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  court  is  seized  of  the  matter.   Under  such  

circumstances, we are inclined to set aside the order passed by  

the  SDM 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  

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  

for  injunction.   We  make  it  clear  that  we  have  also  not

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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.   

17. The appeal is disposed of, as above.    

…………………………………..J. (K.S. Radhakrishnan)

…………………………………..J. (Dipak Misra)

New Delhi, December 13, 2012