IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47876 of 2007 RAM NARAIN MISSIR son of Late Lachhmi Narain Missir, Resident of village & P.O. Mangrahri, P.S. Shikarpur, Dist. West Champaran …….Ppetitioner Versus 1.The STATE OF BIHAR 2.S.D.O. Narkatiyaganj, West Champaran. 3.Hira Lal Prasad son of Late Ram Narain Prasad, Village Ramnagar Sonebar P.O. & P.S. Ram Nagar, Dist. West Champaran ……..O.Ps. ------------ 3 16.2.2009 Heard learned counsel for the petitioner and for O.P. nos.1 and 2 who are the State authorities. No one appears on behalf of O.P. no.3 despite having entered appearance when the matter is called out. The petitioner assails the order dated 3.8.2007 of the S.D.O. , Narkatiyaganj in case no. 726(M)2007 by which in a proceeding under section 145 Cr.,P.C. orders have been passed for attachment of the land of Khata No. 76, plot no. 117 having an area of 07 decimal of village Mangrahri. Learned counsel for the petitioner submits that there was no report of the Block Development Officer available before the learned Magistrate before issuance of the impugned order. He invites attention of the court to the specific pleading in this regard made in paragraph 10 of the application. He next submits that from the discussion contained in the impugned order dated 3.8.2007, it appears that the Magistrate was satisfied that there was apprehension of breach of peace because of the dispute between the parties. There is no satisfaction of the statutory requirement of section 146(1) Cr.P.C. He next submits that the lands have been mutated in favour of the petitioner by order dated 22.7.1983 in mutation case no. 20 of 1983- - 2 - 84 and rent receipts are being issued in the name of the petitioner. There was thus no case at all for attachment under section 146 (1) Cr.P.C. Section 146 (1) Cr.P.C. vesting powers of attachment in a Magistrate has been strictly construed by the Courts. The order must record the satisfaction of an emergency as distinct from apprehension of breach of peace due to dispute, or the Magistrate was not able to satisfy himself on reports as to who was in possession or that none of them were in possession. Though the Magistrate refers to the report of the Block Development Officer, neither is there mention any date on such report nor is there any discussion of the nature of the report. In this background the specific pleading of the petitioner in paragraph 10 that in fact there was no such report of the Block Development Officer assumes significance. The contention of the petitioner is that there is mutation in his name and rent receipts are being issued in his favour. Mutation is prima- facie evidence of possession. There is no discussion in the impugned order that the magistrate was unable to satisfy himself that none of the parties was in possession or as to which of them was in possession. This Court, on the basis of the aforesaid discussion concludes that the order of attachment dated 3.8.2007 in case no. 726(M)2007 passed by the Sub Divisional Magistrate, Narkatiaganj is vitiated for non compliance with the provisions of 146(1) Cr.P.C. It is accordingly set aside. The application stands allowed. (Navin Sinha, J) Rahman/ - 3 - Rahman/