HIGH COURT OF CHHATTISGARH AT BILASPUR CR.M.P. N0. 341 OF 2010 1) Sanjay Singh @ Kalu Singh son of Sn' Vijay Singh Thakur, aged about 50 years, Cultivator, Village Kumbharauli, Police Station Lalpur, Distn'ct Bilaspm(C.G.) at present residing at Magad Nagar, Sanjay Auto Care, Ring Road No. 2 Police Station Civil Line, Tahsil and District Bilaspur (C.G.). 2) Vijay Shyam Thakur, @ Koli Singh, son of Sli Vijay Singh Thakur, aged about 38 years, Cultivator, Village Kumbharauli, Police Station Lalpur, Distt. Bilaspur (C.G.) at present residing at Magad Nagar, Sanjay Auto Care, Ring Road N0. 2 Felice Station Civil Line, Tahsil 8r, Distt. Bilaspur (C.G.). 1) Balram Singh son of Shri Dhanush Singh Thakur, aged about 53 years, 2) Lok Singh son of Shri Dhanush Singh Thakur, aged about 50 years, Both resident of Village Kumbharauli, Police Station Lalpur, District Bilaspur (C.G.). 3) State of Chhattisgarh through Ofncer in Charge Police Station Lalpur, District Bilaspur (C,G.). PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE. PETITIONERS VERSUS (SB :Hon’ble Mr. T.P.Sharma, J.) Presenti~ Mr, KA. 'Ansari, Sr. Advocate with Ms. Meera Ansari, Advocate for the petitioners. Mr. M.K. Bhaduri, Advocate for the respondents No. 1 8a 2. Mr. Sumit Jhanwar, P,L. for the State/respondent No. 3. ORAL— ORDER (Passed on 25/01/2011) By this petition under Section 482 of the Code of Cn'minal Procedure, 1973 (in short ‘the Code’) petitioners have challenged the legality and propriety of the order dated 13/ 1/2010 passed by Second Additional Sessions Judge (F.T.C.), Mungeli, District Bilaspur in criminal revision No. 19/2009 affirming the order dated 31j8/2009 passed by Sub- Divisional Magistrate, Lot-mi, District Bilaspur in criminal case No. 6/2009 whereby learned Sub-Divisional Magistrate, Lormi, District Bilaspur after passing preliminary order under Section 145(1) of the Code has passed the order for attachment of the property under Section 146(1)-ofthe Code. 2. Petitioner have challenged the legality and propriety of the order of attachment passed by Sub-Divisional Magistrate on the ground that ‘x ,. without any emergency Sub—Divisional Magistrate has passed the order under Section 146(1) of the Code and thereby committed an illegality resulting into miscarriage ofjustice. 3. As per copy of report submitted by Police before the Sub—Divisional Magistrate and .other documents, both the parties were claimed possession over the property under dispute. After inquiry Police Station, Lalpur has submitted its report before the Sub—Divisional Magistrate and after considering the report preliminary order under Section 145(1) of the o Code has been passed by Sub-Divisional Magistrate and considering the emergency, Sub-Divisional Magistrate has also passed the order of attachment of the property under Section 146(1) of the Code, same was challenged before the Revisional Court and while anirming the order impugned, Revisional Court has dismissed the revision. 4. Mr. K.A. Ansari, Sr. Advocate with Ms. Meera Ansari, learned counsel for the petitioners, Mr. M.K. Bhaduri; learned counsel for the respondents No. 1 8r, 2 and Mr. Sumit Jhanwar, learned P.L. for the State] respondent No. 3 are heard. 5. Learned counsel for the petitioners vehemently argued that as per report ' of the Police, respondent No. 1 Balmm Singh has stated before the Police that he will take possession of the property. De‘n'nitely, both the parties (2% -. Z\ am having claim on th€ basis of symbol of title but at the time of passing the order under Section 146(1) of the Code, Executive Magisuate is required to consider whether there is any emergency relating to possession and whether the order relating to attachment of property is n€C€Ssaly. 6. Learned counsel for the petitioners further argued that in the present case, without considering the aforesaid questions Sub—Divisional Magistrate has passed the order for attachment of the property and \\" ‘ thereby committed an illegality. ’ On the other hand, learned counsel for the respondents No. 1‘ & 2 and learned counsel for the State] respondent No. 3 opposed the petition. Learned counsel for the respondents No. 1 & 2 vehemently argued that considering the Bolice report, Sub-Divisional Magistrate has rightly passed the order for attachment of property after passing the preliminary order under Section 145(1) of the Code. 9. Leaned counsel for the respondents No. 1 8a 2 placed reliance in the ' matter of Ranbil’ Singh v. Dalbir Singh and Othersl 1'11 which Supreme Court has held that High Court was not required to consider matters relating to title or right of possession of property especially when civil dispute by parties is pending before Civil Court and question of possession and title can be gone into by Civil Court. 10. Both the order impugned and record of Courts below perused. 11. After passing the preliminary order under Section 145(1) of the Code, Executive Magistrate is empowered to pass the order under Section 146(1) of the Code in case Magistrate considered the case to be one of emergency or if decided that none of the parties was in such possession. In the present case, as per report submitted by the Police, both the ‘ AIR 2002 sc 1500 ‘ ”i 7 pm L1 ,_. parties are not resident of same place i.e. Village Kumbharauli where the property situated. While passing the order under Section 146(1) of the Code, Sub—Divisional Magistrate has not considered the question of any emergency. Virtually, it appears that Sub—Divisional Magisirate has passed the order under Section 146(1) of the Code mechanically. In all cases of proceeding under Section 145(1) of the Code, order for attachment of property in terms of under Section 146(1) of the Code is neither sine-quo—non nor necessary. 12. As held in case of Ranbir Sing]: (Supra) at the time of considering the case under Section 482 of the Code, High \Coiurt is not required to consider the matters relating to title or right of p0ssession of property. High Court is required to consider the factum of possession and in case of under Section,146(1) of the Code factum of emergency therefore, the case Ranbjr Singh (Supra) is distinguishable on the grounds of fact. 13. While dismissing the revision, learned Second Additional Sessions Judge (F.T.C.), Mungeli, District Bilaspur has also not considered the elements of emergency for passing the order under Section 146(1) of the Code thereby both the Courts below have committed an illegality by passing the order under Section 146(1) of the Code and committed grave illegality, such order should not be continued. Consequently, petition is allowed. Order impugned relating to attachment of property passed under Section 146(1) of the Code dated 31/8/ 2009 is hereby set—aside. Although parties are at liberty to file afresh application before the Sub- Divisional Magistrate, Lormi District Bilaspur under Section 146(1) of the Code in case of any emergency. ’ T.P. Sharma ‘ Judge V Sd/- i {L/