May 20, 2024
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Code of Criminal Procedure, 1973 – Sections 145, 146- Breach of peace – Emergency situation – Possession dispute – Civil litigation – Non-application of mind – Proceeding under Section 145 – Attachment under Section 146 – The application under Section 482 of the Code of Criminal Procedure, 1973 challenges the orders by the Executive Magistrate, concerning a dispute under Section 145 of the Code of Criminal Procedure, 1973 and subsequent attachment under Section 146(1) of the same.
The petitioner contests the legality of both orders, asserting that the initiation of the proceeding and the attachment were illegal and an abuse of process. It’s argued that the jurisdiction under Section 145 can only be invoked if there’s a likelihood of a breach of peace, which wasn’t sufficiently demonstrated in this case.
The petitioner highlights that the attachment order was passed ex-parte without affording them an opportunity to respond, which is contrary to the exceptional circumstances required for such an order. Reference is made to legal precedent discouraging parallel criminal proceedings when a civil litigation is pending regarding property possession, emphasizing the binding nature of civil court decrees.
The respondents counter by claiming entitlement to the land based on a partition deed and subsequent court judgments. They argue that emergency circumstances justified the attachment due to the petitioner’s attempt to construct on disputed land.
Legal precedents are cited to emphasize that the existence of an emergency, not just the use of the term “emergency,” warrants attachment under Section 146.
The judgment critically examines the orders and the circumstances leading to them. It observes discrepancies between the assertions made in the complaint and police report, highlighting the absence of clear grounds for apprehension of breach of peace.The judgment reiterates the requirement for a dispute likely to cause a breach of peace under Section 145, emphasizing that it must disturb public order, not just personal peace.
It concludes that the impugned orders suffer from non-application of mind and jurisdictional error, resulting in injustice to the petitioner. Consequently, both orders are quashed, and the petition is allowed. Important Paragraph Numbers of Judgment: (Para 13, 19, 30, 31)
GAUHATI HIGH COURT
2023 STPL(Web) 183 Gauhati
[2024 STPL 1651 Gauhati]
Md. Osman Ali Saikia And Anr. Vs. Chand Mahamod Saikia And 2 Ors.
Crl.Pet. 239 of 2021-Decided on 8-11-2023
https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-183-Gauhati.pdf
