ASHOK KUMAR versus STATE OF UTTARAKHAND & ORS.

Citation: [2012] 13 S.C.R. 971 · Decided: 13-12-2012 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Disposed off
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Judgment (excerpt)

[2012] 13 S.C.R. 971 
ASHOK KUMAR 
v. 
STATE OF UTTARAKHAND & ORS. 
(Criminal Appeal No. 2038 of 2012) 
DECEMBER 13, 2012 
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] 
Code of Criminal Procedure, 1973: 
A 
B 
ss.145 and 146 (1) - Application u/s. 145 - Praying for c 
attachment of property - Civil suit and application for interim 
injunction in respect of the same property pending before civil 
court - Police enquiry report stating that one of the parties was 
in possession - SOM passing order for attachment - Order 
confirmed by High Court - On appeal, held: The SOM had 
wrongly invoked powers u/s. 146(1) as there is nothing to 
D 
show that an emergency existed so as to attach the property 
· - He could not have passed order of attachment on the ground 
of emergency when the reports indicated that one of the 
parties was in possession - The issue of possession, since 
was pending, it was for the civil court to decide the issue. 
E 
ss. 145 and 146 (1) - Scope of - Held: The object of s. 
145 is merely to maintain law and order and to prevent breach 
of peace by maintaining one or other of the parties in 
possession - The scope of enquiry uls. 145 is in respect of F 
actual possession without reference to the merits - Order of 
attachment u/s. 146(1) can be passed only in case of 
emergency - s. 146 can only be read in the context of s. 145 
- The ingredients necessary for passing order u/s. 145(1) 
would not automatically attract for attachment of property -
G 
Case of emergency has to be distinguished from a mere case 
of apprehension of breach of peace - To infer a situation of 
emergency, there must be material on record before 
Magistrate. 
971 
H 
972 
SUPREME COURT REPORTS 
[2012] 13 S.C.R. 
A 
The second respondent filed a suit against the 
appellant and third respondent as defendants, praying for 
a decree of temporary injunction, restraining them from 
interfering with their peaceful enjoyment and possession 
of the property in question. An application for interim 
B injunction was also filed. The suit and the application are 
still pending. 
Thereafter, the second respondent filed an 
application u/s. 145 Cr.P.C. in respect of the same 
property, for an order of attachment of the property in 
C question. As per enquiry report by the police, the 
appellant was in possession of the property and there 
was possibility of breach of peace. SOM, after referring 
to the police report passed an order attaching the 
property u/s. 146(1) Cr.P.C. The order of SOM was 
D confirmed by the High Court. Hence the present appeal. 
Disposing of the appeal, the Court 
HELD: 1. The SOM has not properly appreciated the 
scope of Sections 145 and 146(1), Cr.P.C. The object of 
E Section 145, Cr.P.C. is merely to maintain law and order 
and to prevent breach of peace by maintaining one or 
other of the parties in possession, and not for evicting 
any person from possession. 
The scope of enquiry u/ 
s.145 is in respect of actual possession without reference 
F to the merits or claim of any of the parties to a right to 
possess the subject of dispute. [Para 7] [976-E-F] 
2. The SOM has wrongly invoked the powers under 
Section 146(1),Cr.P.C. Under Section 146(1), a Magistrate 
G can pass an order of attachment of the subject of dispute 
if it be a case of emergency, or if he decides that none of 
the parties was in such possession, or he cannot decide 
as to which of them was in possession. Sections 145 and 
146 Cr.P.C. together constitute a scheme for the 
H resolution of a situation where there is a likelihood of a 
ASHOK KUMAR v. STATE OF UTTARAKHAND & 
973 
ORS. 
breach of the peace and Section 146 cannot be separated 
A 
from Section 145. It can only be read in the context of 
Section 145. If after the enquiry under Section 145, the 
Magistrate is of the opinion that none of the parties was 
in actual possession of the subject of dispute at the time 
of the order passed under Section 145(1) or is unable to 
B 
decide which of the parties was in such possession, he 
may attach the subject of dispute, until a competent court 
has determined the right of the parties thereto with regard 
to the person entitled to possession thereof. [Para 12) 
[978-E-H] 
C 
3. The ingredients necessary for passing an order u/ 
s.145(1) Cr.P.C. would not automatically attract for the 
attachment of the property. Under Section 146, a 
Magistrate has to satisfy himself as to whether 
emergency exists before he passes an order of D 
attachment. A cas
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