IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50669 of 2007 RAM NARAIN MISSIR SON OF LATE LACHHMI NARAIN MISSIR, RESIDENT OF VILLAGE & P.O. MANGRAHRI P.S. SHIKARPUR, DISTRICT WEST CHAMPARAN Versus 1. STATE OF BIHAR 2. KRISHNA KUMAR GUPTA SON OF LATE KAPILDEO PRASAD VILLAGE MANGRAHRI P.S. SHIKARPUR, DISTRICT WEST CHAMPARAN with Cr.Misc. No.56702 of 2007 RAM NARAIN MISSIR SON OF LATE LACHHMI NARAIN MISSIR, RESIDENT OF VILLAGE & P.O. MANGRAHRI P.S. SHIKARPUR, DISTRICT WEST CHAMPARAN Versus 1. STATE OF BIHAR 2. THE S.D.O. NARKATIYAGANJ, WEST CHAMPARAN, 3. VIJAY KUMAR SON OF LATE KAPILDEO PRASAD VILLAGE MANGRAHRI P.S. SHIKARPUR, DISTRICT WEST CHAMPARAN ----------- For the Petitioner : M/s K.K.Tiwary & Ashok Kumar Sinha No.2 For the O.P. No.2: M/s Ashok Kumar Sinha, Shyam Sunder Pandey For the State : Smt. Indu Bala Pandey, A.P.P. 4 22.12.2009 Heard counsel for the petitioner and the State. Both Cr.Misc.No.50699 of 2007 and Cr.Misc.56702 of 2007 are taken up together. In Cr.Misc.No.50699 of 2007 the petitioner prays for quashing the order dated 3.8.2007 passed by the S.D.O. Narkatiyaganj in Case No.725M/2007 by which the learned Magistrate passed order under section 146(1) Cr.P.C. attaching the disputed land and appointing the Officer Incharge, Narkatiyaganj P.S. as Receiver. In Cr.Misc.No.56702 of 2007, the petitioners seek quashing of the order dated 28.5.2007, passed by the S.D.O. Narkatiyaganj by which he has initiated a proceeding under section 145 Cr.P.C. The petitioner has challenged the impugned order dated 3.8.2007 attaching the property under section 146(1) Cr.P.C.on the ground that the impugned order does not record the satisfaction of an emergency which is mandatory for attaching the property under - 2 - section 146(1) Cr.P.C. He further states that exactly two similar orders passed by the S.D.O. between the parties has been set aside by order dated 16.2.2009 passed in Cr. Misc. No.47876 of 2007 and Cr.Misc.No.47877 of 2007. Learned counsel for the Opposite party submits that the petitioner did not cooperate in the proceeding and he remained absent. Ultimately the case was proceeded exparte and the Opposite party has even made his submissions and arguments. The case is almost at its final stage. The issue is whether the order of attachment under section 146(1) Cr. P.C. confirmed to the requirement provided under the provisions of the Act. Section 146(1) Cr.P.C. vesting powers of attachment in a Magistrate has been strictly construed by the Courts. The order must record its satisfaction that an emergency has arisen between the parties. I find that the Magistrate has not recorded the aforesaid finding. In the circumstances, the impugned order of Cr.Misc.No.50669 of 2007 attaching the property under section 146(1) Cr.P.C. is set aside with a direction to the learned Magistrate to conclude the proceeding, if not already concluded, within a period of two months from the date of receipt/production of a copy of this order. In case the petitioner has not cooperated or absented himself, it would be open for the Magistrate to proceed exparte. So far as quashing of the impugned order of Cr.Misc.No.56702 of 2007 initiating a proceeding under section - 3 - KHAN 145(1) Cr.P.C. is concerned, I do not find any substance in the submission of learned counsel for the petitioner. Section 145 Cr.P.C. even provides jurisdiction to the Magistrate to initiate a proceeding under section 145(1) if on an application of the party, he is satisfied that there is apprehension of breach of peace. In the instant case I find that the Magistrate has recorded that he apprehends breach of peace. Learned counsel for the petitioner submits that subsequently the Block Development Officer has reported that the petitioner is in possession of the disputed land. The petitioner may raise this point for appropriate orders before the learned Magistrate first. In the aforesaid circumstances, this application being Cr.Misc.No.56702 of 2007 is dismissed with the direction to the Magistrate to complete the proceeding expeditiously preferably within two moths from the date of receipt/production of a copy of this order. (S.P.Singh,J)