AJAY SINGH CHANDRA v. STATE OF CHHATTISGARH
Court: High Court of Chhattisgarh
Bench: HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL
Judgment date:
Case summary
High Court of Chhattisgarh judgment dated 2020-12-14. AJAY SINGH CHANDRA v. STATE OF CHHATTISGARH. Read the judgment and case details on LawSphereX.
Judgment text
AFR HIGH COURT OF CHHATTISGARH, BILASPUR Cr. M. P. No. 1270 of 2020 Ajay Singh Chandra, S/o. Satyanarayan, aged about 49 years, R/o. Village Jhalronda, Police Station Baradwar, Tehsil Sakti, District Janjgir-Champa, Chhattisgarh ---- Petitioner Versus 1. State of Chhattisgarh through Police Station Baradwar, District Janjgir-Champa, Chhattisgarh 2. Sub-Divisional Officer, Sakti, District Janjgir- Champa, Chhattisgarh 3. Naveen Bansal, S/o. Suresh Kumar Agrawal, aged about 37 years, 4. Amit Bansal, S/o. Suresh Kumar Agrawal, aged about 35 years, Respondent No. 3 & 4 are R/o. Friends Colony, Raigarh, Tehsil & District Raigarh, Chhattisgarh 5. Shyamsundar Sharma, S/o. Ramchandra Sharma, aged about 27 years, R/o. 105 G, Heights, Gajanandpuram, Kotra Road, Raigarh, Police Station Raigarh, Tehsil & District Raigarh 6.
Gram Panchayat Jhalronda, through its Sarpanch, Gram Panchayat Jhalronda, Police Station Baradwar, Tehsil Sakti, District Janjgir-Champa, Chhattisgarh ---- Respondents For Petitioner : Mr. Manoj Paranjape, Advocate For Respondents No. 1 and 2: Mr. Ravi Bhagat, Dy. G. A. For Respondents No. 3 to 5: Mr. Anoop Mazumdar, Advocate For Respondent No. 6: Mr. Deepak Kumar Singh, Advocate Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 14/12/2020 1. This petition under Section 482 of the CrPC is directed against the order dated 10. 09. 2020 passed by the First Additional Sessions Judge, Sakti, in Criminal Revision No. 07/2020, by which the learned revisional Court affirmed the order dated 13. 07. 2020 passed by the learned Sub-Divisional Magistrate, Sakti, by which proceeding under Section 145 (1) of the CrPC has been initiated on filing Ishtagasha by the jurisdictional police and order of attachment of the subject-property has been passed. 2.
The dispute relates to the dolomite mines situated at village Jhalronda, Tahsil Jaijaipur, District Janjgir- Chamnpa in Khasra No. 46/1, area 4. 048 hectare, of which the lease is said to have been granted to the petitioner by the State Government w. e. f. 2. 8. 2010 to 1. 8. 2030 for carrying out the mining activities. After eight years, the petitioner is said to have entered into an agreement with father of respondents No. 3 and 4 on 18. 5. 2018, pursuant to which, some dispute arose between the petitioner and respondents No. 3 & 4 which led to filing of police report by the jurisdictional police on 29. 6. 2020 and ultimately on 13. 07. 2020 the jurisdictional police submitted Ishtagasha No. 01/20 for initiating proceeding under Section 145 of the CrPC to the Court of Sub-Divisional Magistrate, Sakti, District Janjgir-Champa.
The learned Sub-Divisional Magistrate on the same day recorded in the order-sheet that an agreement has been entered into by the petitioner and father of respondents No. 3 and 4 on 23. 5. 2018 and there is dispute with regard to production, income and profits and there is an apprehension of breach of peace, pursuant to which, the learned SDM directed to register the case and also directed for passing of preliminary order and issuance of summons. The preliminary order under Section 145 of the CrPC was separately passed in cyclostyle proforma and directed the Station House Officer, Police Station Baradwar to comply with the order 13. 7. 2020 and to attach the subject property and give the subject land in Supurdnama to Sarpanch of Gram Panchayat, Jhalronda. The petitioner herein basically questioned both the orders passed under Section 145(1) of the CrPC and order directing attachment of the subject property before the revisional Court.
The revisional Court dismissed the revision finding no merit, against which, this petition under Section 482 of the CrPC has been filed. 3. Mr. Manoj Paranjape, learned counsel for the petitioner confining his submission to question the order under Section 146 of the CrPC, would submit that no satisfaction in terms of Section 146(1) of the CrPC has been recorded by learned SDM.
He would further submit that in fact, only order under Section 145 (1) of the CrPC was passed by learned SDM and on the pretext of complying with the said order, warrant of attachment was issued as if there is order under Section 146 of the CrPC, whereas no order under Section 146 of the CrPC was passed after passing the order under Section 145(1) that it is the case of one of emergency, or he did not decide that none of the parties was in possession of the subject property or he has not recorded a finding that he is unable to satisfy as to which of them was in possession of the subject property, then also in the name of complying the order under Section 145 of the CrPC, the subject property was attached, which is liable to be set aside in view of decision of the Supreme Court in the matter 1 of Ashok Kumar v. State of Uttarakhand . 4. On the other hand, Mr. Anoop Mazumdar, learned counsel for respondents No.
3 to 5, would submit that the impugned order is strictly in accordance with law as satisfaction has been recorded by learned SDM in the order dated 13. 7. 2020. He would further submit that the petitioner has already sub-leased the subject property to father of respondents No. 3 and 4 by irrecoverable power of attorney and gave the possession of the subject property, as such, no exception can be taken the order of the learned SDM, as such, the learned SDM is absolutely justified in 1 (2013) 3 SCC 366 attaching the property till the proceedings are finalized by filing the reply and affidavit, as such, the revisional Court is also justified in affirming the order of learned SDM, as such, the petition under Section 482 of the CrPC deserves to be dismissed. 5. Mr. Ravi Bhagat, learned Deputy Government Advocate appearing for respondents No. 1 and 2/State, would support the impugned judgment. 6.
I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 7. The main dispute is with regard to attachment of the property under Section 146 (1) of the CrPC which states as under:- “146. Power to attach subject of dispute and to appoint receiver.
-(1) If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. ” 8.
A careful perusal of the above-stated provision would show that if the Magistrate at any time after passing of the order under sub-section (1) of Section 145 finds, firstly, that it is case of one of emergency, or secondly, he decides that none of the parties was in possession as is referred to in section 145 or thirdly, he is unable to satisfy himself as to which of them was in possession of the subject property, then he may pass an order of attaching the subject property until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof, as such, presence of either of three conditions precedent are necessary for invoking Section 146(1) of the CrPC and that too after making an order under Section 145(1) of the CrPC. 9. Section 146(1) of the CrPC was considered by their Lordships of the Supreme Court in the matter of Ashok Kumar (supra) in which it was held as under:- “9.
The above order would indicate that the SDM has, in our view, wrongly invoked the powers under Section 146(1) CrPC. Under Section 146(1), a Magistrate 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 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and Section 146 cannot be separated from Section 145 CrPC. It can only be read in the context of Section 145 CrPC.
If after the enquiry under Section 145 of the Code, 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 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. 10. The ingredients necessary for passing an order under Section 145 (1) of the Code 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 attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace.
The Magistrate, before passing an order under Section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be material on record before the Magistrate when the submission of the parties is filed, documents produced or evidence adduced. 11. We find from this case that there is nothing to show that an emergency exists so as to invoke Section 146(1) and to attach the property in question. A case of emergency, as per Section 146 of the Code has to be distinguished from a mere case of apprehension of breach of peace. When the reports indicate that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency.
The order acknowledges the fact that Ashok Kumar has started construction in the property in question, therefore, possession of property is with the appellant – Ashok Kumar, whether it is legal or not, is not for the SDM to decide. ” 10. Reverting to the facts of the present case in light of principle of law laid down and interpretation rendered by their Lordships of the Supreme Court in matter of Ashok Kumar (supra), it is quite vivid 13. 7.
2020 learned SDM held that there is likelihood of breach of peace and directed for registration of case and also directed for passing of preliminary order under Section 145(1) of the CrPC and of summons which states as under:- 13@07@2020 iqfyl Fkkuk ckjk}kj ftyk tkatxhj pkEik ¼N-x-½ }kjk bZ'rxk'kk dzekad 01@2020 /kkjk 145 tk0 QkS0 dk izLrqr fd;k gS fd xzke >kyjkSank fLFkr tehu [kljk ua0 46@01 jdck 4-048 gS0 tehu fookfnr Hkwfe@ekbZUl dh tIrh dkZ;okgh gsrq bZ'rxk'kk izkIr gqvkA xzke >kyjkSank fuoklh oknh dz- 01 vukosnd vt; flag pUnzk xzke >kyjkSank esa fLFkr tehu [k-ua- 46@1 jdck 4-048 gsDVs;j tehu esa 20 o"kZ dh vof/k vFkkZr~ 01@08@30 rd ds fy, MksyksekbM [kfut mR[kuu iV~Vk fof/kor 'kklu ls izkIr gksus ij ekbfuax ds lapkyu gsrq oknh ua0 2 ds vukosndx.
k dz- 01 uohu caly dz- 02 vfer caly dz- 03 ';kelqanj 'kekZ ds lkFk fnukad 22-05-2018 dks vuqca/k Ik= bdjkjukek rS;kj djkdj lk>snkjh QeZ rS;kj fd;k x;kA fnukad 15-05-2018 dks ikVZujf'ki MhM rS;kj fd;k x;k FkkA nksuksa i{k bl ekbal ds mRiknu ,oa ykxr] [kpZ] vken ij ls ,d nwljs ds fo:) vkilh eueqVko ¼dVqrk½ dk okrkoj. k fufeZr gks pqdk gSA ,slh fLFkfr esa nksuksa i{k ls ikVhZ canh dk ekgkSy cu jgk gS ,d nwljs ij 'kfDr izgkj dj xaHkhj ekuoh; {kfr dj ldrs gSa ekbal ij dCtk djus dh ckr ij 'kkafr Hkax gksus dh laHkkouk gSA /kkjk 145 tk-QkS- izfdz;k ds rgr] vkosnu is'k gSA izdj. k iathc) gksA Fkkuk ckjk}kj dks izkajfHkd vkns'k ikfjr dj mlds fu"iknu gsrq Hkstk tkosaA mHk;i{k dks leal Tkkjh fd;k tkosaA Ekk-fn- lgh@& 27@07@2020 vuqfoHkkxh; n. Mkf/kdkjh lDrh Thereafter, in order to comply with the above-stated learned SDM passed the preliminary order in printed proforma (page 76 of paper book).
It is pertinent to mention here that the learned SDM in last paragraph has also directed for seizure of dolomite mines which states as under:- U;k;ky; vuqfoHkkxh; n. Mkf/kdkjh lDrh@ftyk tkatxhj pkaik ¼NRrhlx<+½ izkjafHkd vkns'k ¼varxr /kkjk 145 n-iz-la-½ lE;d :i ls vfHkfyf[kr vk/kkjksa ij eq>s ;g izfrr gksus ij fd esjh LFkkuh; vf/kdkfjrk ds vanj fLFkr xzke >kyjkSank Fkkuk ckjk}kj rglhy lDrh ftyk tkatxhj pkaik ¼N-x-½ fd Hkwfe [k-ua- 46@1 jdck 4-048 gsDVs;j tehu esa MksyksekbZV ekbUl jdck -----------------------------------------------------------------------------------------------------------------------------------------------------------------dqy [k-ua- 46@1 ;ksx jdck 4-048 dks ysdj mlds dCts laca/k esa nks ikfVZ;ksa esa e/; tks fuEu gS%& ikVhZ ua- 1 vt; flag pUnzk firk lR;ukjk;. k mez 49 o"kZ lk- >kyjkSank ikVhZ ua- 2 1@ uohu caly fi0 lqjs'k dqekj mez 37 o"kZ oxSjg Qzs.
M~l dkWyksuh 2@ vfer caly fi0 lqjs'k dqekj 3@ ';ke lqanj 'kekZ ds e/; fookn fon~eku gS Fkkuk izHkkjh ckjk}kjk xzke ckly[kSaMk ds fjiksVZ ls eq>s lek/kku dks x;k gS fd mDr Hkwfe ds dCts dks ysdj ifj'kkafr Hkax gks tkuk lEHkO; gS vr% mHk; i{kdkjksa ls mis{kk dh tkrh gS fd os fnukad 27@07@2020 dks 11%00 cts U;k;ky; esa Lo;a ;k tfj;s vfHkHkk"kd ds gkftj gks vkSj fookn ds fo"k; oLrq ij okLrfod dCts ds fu;e ds ckjs esa vius nkos dk fyf[kr dFku is'k djs Fkkusnkj mDr vkns'k fd izfr lacaf/kr i{kdkjksa dks rkehy djsa] rFkk ,d izfr fookfnr MksyksekbZV ekbUl dh tIrh dk;Zokgh dh vuqefr iznku dh tkrh g S ;k lkoZtfud LFky ij ;k lgt n`'; txg ij izdkf'kr djsa vkt fnukad 13@07@2020 esjs gLrk{kj ,oa U;k;ky; dh eqgj yxkdj tkjh fd;k x;k fnukad 13@07@2020 lgh@& vuqfoHkkxh; n. Mkf/kdkjh lDrh 11. Thereafter in separately (page 77 of paper book) learned SDM issued warrant of attachment of subject property which states as under:- U;k;ky; vuqfoHkkxh; n.
Mkf/kdkjh lDrh ftyk tkatxhj pkaik ¼NRrhlx<+½ Hkwfe vkfn ds dCts ds ckjs esa fookn ds ekeys esa dqdhZ dk okjaV ¼varxr /kkjk 146 n-iz-la-½ 171 dz- D;w@v-fo-n. Mk-@2020 lDrh fnukad 13@07@2020 izfr] Fkkuk izHkkjh iqfyl Fkkuk ckjk}kj ftyk tkatxhj pkaik ¼N-x-½ lanHkZ%& izkjafHkd vkns'k fnukad 03@07@2020 ds vkns'k ds ikyu izfrosnu gsrq i{kdkj vt; flag cuke uohu oxSjg ds izdj. k esa eq>s ;g izrhr djk;k x;k gS fd esjh vf/kdkfjrkvksa dh lhekvksa ds vanj fLFkr [k-ua- 46@1] jdck 4-048 gsDVs;j ftlesa ifj'kkafr Hkax gksuk laHkkO; gSa mDr i{kdkjksa ls lE;d :i ls vis{kk dh xbZ gS fd os mDr [k-ua- 46@1] j k 4- 048 gsDVs;j ij okLrfod dCts ds ckjs esa fy[kr dFku fnukad 27@7@2020 dks izLrqr djs blfy, vkidks izkf/kd`r fd;k tkrk gS fd vc vkils vis{kk dh tkrh gS fd vki ljip xzk iapk- >kyjkSank dks mldk dCtk ysdj vkSj j[kdj dqdZ djs ,oa fdlh l{ke ;ksX; O;fDr dks lqiqnZukek esa nsdj bl okjaV ds fu"iknu dks i`"Bkadu }kjk izekf. kr djrs gq;s mls ykSVk nsa fnukad 13@07@2020 vuqfoHkkxh; n.
Mkf/kdkjh lDrh izfr%& iVokjh gYdk ua- ----------- xzke >kyjkSank dks Fkkuk izHkkjh ckjk}kj dks vko';d nLrkost lfgr lg;ksx djus gsrq mifLFkr jgus ckcr lgh@& vuqfoHkkxh; n. Mkf/kdkjh lDrh 12. A careful perusal of the above-stated orders would show that learned SDM has only passed an order under Section 145 of the CrPC on 13. 7. 2020 in order-sheet and directed for registration of case, passing of preliminary order and also directed for issuance of summons, but there is no order passed in terms of Section 146(1) of the CrPC either in the order dated 13. 7.
2020 or after making of the order under Section 145(1) of the CrPC holding enquiry (if any) that it is the case of emergency or recording satisfaction that none of the parties was in possession of the subject property or he did not record that he is unable to satisfy himself as to which of them was in possession of the subject property, but surprisingly while passing a preliminary order under Section 145 of the CrPC in cyclostyle proforma, one paragraph has been added for attachment of the subject property and directed the Station House Officer, Police Station Baradwar to comply with the order dated 13. 7.
2020 and to attach the subject property and give it to Sarpanch of Gram Panchayat Jhalronda, as such, though no order has been passed in the order-sheet invoking Section 146 of the CrPC, that too complying with the provisions contained in Section 146 (1) of the CrPC after passing the order under Section 145 of the CrPC, yet by issuing memo in the shape of preliminary order (pages 76 and 77 of paper book), order for attaching the property and giving it in Supurdnama has been directed, which is absolutely contrary to law. Unless the order under Section 146 of the CrPc is passed after passing the order under Section 145(1) of the CrPC in specific term in order-sheet fulfilling the requirement of Section 146(1) of the CrPC, while directing compliance of order under Section 145 (1) of the CrPC, no property can be directed to be attached and to be given in Supurdnama.
The order of attachment of subject-matter is not implicit in order under Section 145(1) of the CrPC and separate & specific order of attachment is required to be passed invoking and fulfilling the statutory requirement of Section 146(1) of the CrPC. While complying with the order dated 13. 7. 2020, only a preliminary order has been passed directing to register a case in line with Section 145(1) of the CrPC. Accordingly, the memo directing attaching the property to the Station House Officer by the learned SDM is ex-facie without jurisdiction and without authority of law and the learned revisional Court failed to notice the aforesaid illegality in the proceedings of the SDM. 13. Accordingly, order of the learned SDM to the extent of directing attachment of the property in its preliminary order while directing to the Station House Officer, Police Station Baradwar on 13. 7. 2020 is hereby set-aside and the impugned order passed by the revisional Court is also set-aside.
However, the proceeding under Section 145 (1) of the CrPC would continue. Since no order has been passed under Section 146 of the CrPC and no finding has been recorded by the SDM in line with that provision, this order will not bar the learned SDM to consider the question of invoking Section 146(1) of the CrPC in accordance with law at appropriate stage. 14. The CrMP is allowed to the extent indicated hereinabove. However, it is made clear that this order has been passed only to consider the validity and correctness of direction issued under Section 146 of the CrPC. This Court has not expressed any opinion on merits of the matter. Sd/- (Sanjay K. Agrawal) Judge B/-
Source: High Court of Chhattisgarh. Dataset: Dattam Labs. CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.