P.P. Gupta, J.@mdashBy this petition the Petitioner, Sheo Nath Singh, has prayed for quashing the order dated 19-3-1988 passed by the S.D.M. Bilhaur, District Kanpur Dehat (Annexure ''2''). order dated 7-10-1988 passed by the S.D.M., Bilhaur, District Kanpur Dehat (Annexure ''4'') and the order dated 16-2-1989 passed by the Sessions Judge, Kanpur Dehat (Annexure ''5'').
2. The brief facts giving rise to this petition are that one Nanhey executed a sale deed on 17-12-1986 in favour of the Petitioner in respect of the land in dispute. Subsequently on 12-5-1987 the same Nanhey executed another sale deed in favour of Smt. Kanti Devi, Respondent No. 2, in respect of the same plot. Nanhey and Smt. Kanti Devi filed a civil Suit No 334 of 1987 in the court of Munsif Dehat, Kanpur for cancellation of the sale deed dated 17-12-1986 in favour of the Petitioner. In that suit, pending decision, parties were directed to maintain status quo in respect of the disputed land.
3. On a police report dated 10-2-1988 (Annexure T) the learned S.D.M., Bilhaur, passed on order u/s 146, Code of Criminal Procedure (hereinafter referred to as the Code) on 19-3-1988 directing the parties-to put in their appearance and to file written statement regarding their respective possession of the disputed land.
4. After having come to know of these proceedings the Petitioner moved an application on 7-10-1988 before the learned Magistrate praying for some time to file objections. Despite that application the learned Magistrate passed an order u/s 146(1) of the Code directing attachment of the disputed land.
5. Feeling aggrieved from this order of the learned Magistrate the Petitioner preferred a revision before the Session Judge, who dismissed the revision as not maintainable by his order dated 16-2-1989.
6. Feeling aggrieved from this order, the Petitioner has filed the present writ petition.
7. With the consent of the parties the petition was heard finally and is being disposed of accordingly.
8. The first contention raised on behalf of the Respondent was that the impugned order dated 7-10-1988 passed by the learned Magistrate u/s 146(1) of the Code directing attachment of the land in dispute was an Interlocutory order and so no revision against such an order was maintainable. This objection was upheld by the learned Sessions Judge.
9. The impugned order dated 7-10-1988. passed by the learned Magistrate, mentions that after hearing the parties and after perusing the police report and accompanying affidavit dated 10-2-1989, which are reliable, the land in dispute be attached. This order appears to be a simple order for attachment u/s 146(1) of the Code. There is no direction to the police to keep the property under attachment untill adjudication of the rights of possession of the parties by the competent court. It does not appear that by issuing this direction the learned Magistrate has adjured his jurisdiction to decide the question of possession u/s 145(4) of the Code. It is also not clear from the order that further consideration of the case has been closed. Therefore, in these circumstances of the case, I hold that the impugned order passed u/s 146(1) of the Code was an interiocatory order. That being so, the revision against this order was barred u/s 397(2) of the Code and hence the revision has rightly been dismissed by the learned Sessions Judge.
10. However, it is to be seen whether in the circumstances of the case, the order dated 7-10-1988, passed by the learned Magistrate, u/s 146(1) of the Code, was legally justified.
11. A bare reading of Section 146(1) of the Code shows that the order of attachment can be passed only if the Magistrate considers the case to be one of emergency. The word ''emergency'' means, in the context serious or dangerous situation or condition that calls for immediate action. Therefore, mere existence of a dispute likely to cause a breach of the peace does not by itself constitute an emergency. There must be something much more than the apprehension of the breach of the peace, which calls for an immediate action in order to prevent immediate peril or sudden peril. The existence of a dispute likely to cause a breach of the peace is the foundation for the jurisdiction of the Magistrate to initiate proceedings u/s 145. The existence of emergency gives the Magistrate jurisdiction to attach the property after making preliminary order u/s 145.
12. The term ''consider'' means to apply mind with a view to form opinion. Therefore, the expression ''considers the case to be one of emergency'' indicates that the Magistrate must form an opinion on the basis of the materials on record that the case is one of emergency. The formation of an opinion may be subjective process, but the existence of circumstances suggesting the inference that the case to be one of emergency must be before the Magistrate, that is, before the formation of the opinion, the circumstances suggesting the interference must exist before the Magistrate.
13. In the instant case, there is nothing in the order to suggest that there was an emergency to pass an order for attachment u/s 146(1) of the Code. The police report which is the basis and foundation of the order is dated 10-2-1988 The impugned order has been passed by the Magistrate eight months thereafter. There is no material or circumstances having taken place after 10-2-1988 suggesting the inference that the case was one of emergency so as to initiate action u/s 146(1) of the Code. Simply because eight months prior to the passing of the order, there was a police report regarding apprehension of breach of peace between the parties over the disputed land, the same does not indicate a situation of emergency calling for immediate action by the learned Magistrate. In this content it any also be pointed out that on the same date on which the order was passed the Petitioner moved an application praying for some time to file objections. Without deciding that application the learned Magistrate has mentioned in the order that both the parties were heard. The order appears to have been passed in an undue haste If there was any emergency of showing such undue haste, the same should have been mentioned in the order.
14. It is true that Section 146 does not speak of recording of the grounds while passing the order. But, in the case of omission to record reasons for formation of opinion in the body of the order, if the materials on record show the existence of dangerous or serious condition or situation which calls for an urgent action to prevent sudden peril or imminent peril, omission to state grounds in the body of the order will not vitiate the order. But in the present case there is neither any material nor any circumstance to show the existence of such dangerous or serious condition or situation which called for an urgent action As has been said above the basis of the order was the police report submitted eight months prior to passing of the order dated 7-10-1988. On these facts and circumstances, this order cannot, therefore, be sustained.
15. For the reasons given above, the petition is allowed and the order dated 7-10-1988, passed by the learned Magistrate, (Annexure 14) is hereby quashed with the direction that the learned Magistrate will proceed to decide the pending case u/s 145, Code of Criminal Procedure as expeditiously as possible in accordance with law.
