Case Facts:
Patna High Court Cr.Misc. No.46692 of 2009 (03) dt.06-08-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.46692 of 2009 ====================================================== 1. Jangali Mahto @ Jangali Singh 2. Lakshman Mahto @ Lakshman Singh .... .... Petitioner/s Versus State Of Bihar & Anr .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Mr. Satyapal Singh For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH ORAL ORDER 03 06-08-2012 This is an application for quashing the order dated 04.3.2009 passed by the learned Sub-divisional Magistrate, Bettiah Sadar in Case No.442M/ 2007 by which he has been pleased to attach the land in question [STATUTE] (1) of the Cr.P.C. Heard learned counsel for the petitioners and learned counsel for the State. In a proceeding under Section 145 of the Cr.P.C., on petition of opposite party no.2, a report was called for from Circle Officer, Nautan, he submitted his report, matter was taken up for hearing. Opposite party no.2 was only heard, though case of petitioners was also taken into consideration. Ultimately basing the report of Circle Officer, Nautan, land in question, in proceeding under Section 145 of the Cr. P. C. is ordered to be attached by the impugned order passed by the learned Sub-divisional Magistrate, Bettiah. No doubt, in a proceeding under Section 145 of the Cr.P.C. Sub-divisional Magistrate or any Executive Magistrate may pass an order under Section 146 of the Cr. P.C., but only if any of the circumstances Patna High Court Cr.Misc. No.46692 of 2009 (03) dt.06-08-2012 given under Section 146 of the Cr. P.C. is existing, that is to be one of emergency, if he decides that none of the parties was in possession over the land or he was not satisfied as which of the parties was then in possession. Possession of the parties has not been taken to be decided then the only condition remained for passing the order is of emergency. Whenever appears apprehension of breech of peace concerning land or water or boundaries thereof proceeding under Section 145 of the Cr. P.C. can be initiated, if something more is added leading to case falling under one of emergency then only attachment can be ordered under Section 146 of the Cr. P.C. So, it is always for the Magistrate to observe the ground for emergency or existence of emergency for passing the order under Section 146 of the Cr. P.C., which is lacking in the case. So, the impugned order is not liable to be sustained. Accordingly, this quashing application is allowed and impugned order dated 04.3.2009 passed by Sub-divisional Magistrate, Bettiah Sadar in case No.442M/ 2007 under Section 146(1) of the Cr. P. C. is hereby quashed. It is left to the learned Sub-divisional Magistrate, Bettiah to pass a fresh order if needed in accordance with law. Vikash/- (Mandhata Singh, J)

Applicable IPC Section: 146

Statute Text:
Section 146 of the Indian Penal Code. Rioting. Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.