Case Background
The dispute arose between co-sharers of ancestral land in village Ambakala Tola, Nayagaon, within Piprahi Police Station, district Sheohar. The land parcels involved were plot numbers 8088, 8089 and 8090, with different areas in decimals.
On 08.07.2014, Opposite Party No. 2 filed an application before the Sub Divisional Magistrate (SDM), Sheohar. He asked for a proceeding under Section 144 of the Code of Criminal Procedure (CrPC), alleging that the petitioners and their family members had dug a ditch on plot no. 8088, khesra no. 1620, over which he claimed to be in peaceful possession.
He stated that he was living peacefully on plot no. 8088, having an area of 12.5 decimals, and that the act of digging a ditch created a law and order problem. The case was registered as Case No. 236 of 2014. On 10.07.2014, notices were issued to the petitioners and others.
On 11.08.2014, Opposite Party No. 2 filed another petition before the SDM. He said that adjacent to plot no. 8088 were the petitioners’ lands, plot nos. 8089 and 8090, in which the petitioners had allegedly dug a ditch. He claimed that because of this, plot nos. 8088 and 8090 had now become disputed and requested that the proceeding be converted to one under Section 145 CrPC (which deals with disputes concerning land or water likely to cause breach of peace).
The petitioners filed their show cause on 21.08.2014. They stated that there had been a family partition on 08.05.1956, recorded in partition deed no. 1071, and that the land in question was in their share. They also explained that during revisional survey, a wrong entry had been made, showing 4.5 decimals of land in plot no. 8088 instead of plot no. 8090.
According to them, their father had moved the Consolidation Officer, Piprahi, in Case No. 09 of 1981. By order dated 13.11.1981, the Consolidation Officer corrected the mistake, and 4.5 decimals of land were transferred from plot no. 8088 to plot no. 8090. They asserted that after this correction, the land belonged to them in terms of the earlier partition.
The petitioners further stated that after partition, their father purchased plot nos. 8091 and 8439, totaling 50 decimals, in the name of their mother, Ram Badan Devi, and that the revisional survey khatiyan was prepared in her name.
On 06.09.2014, after considering that there was a question of possession over the disputed land, the SDM converted the Section 144 proceeding into a proceeding under Section 145 CrPC.
Subsequently, on 18.11.2014, Opposite Party No. 2 again approached the SDM and requested that plot nos. 8089 and 8090 also be included in the dispute, on the ground that plot nos. 8088, 8089 and 8090 were conjoint and mixed up.
On 05.01.2016, after about two years from conversion to Section 145, Opposite Party No. 2 filed a petition under Section 146(1) CrPC. He sought attachment of the disputed lands and appointment of a receiver for plot nos. 8088, 8089 and 8090.
What the Court Examined and Decided
To decide whether the SDM’s order of attachment was legal, the Patna High Court, through Hon’ble Mr. Justice Anil Kumar Sinha, closely examined the steps taken by the SDM, the police report, the Circle Officer’s report and the requirements of Sections 145 and 146 CrPC.
After the Section 146(1) petition of Opposite Party No. 2, the SDM, by memo no. 9 dated 11.01.2016, called for a report from the Station House Officer (SHO), Piprahi Police Station. The SHO submitted his report on 21.02.2016. However, this report wrongly mentioned plot no. 8080 instead of the correct plot numbers.
Because of this error, the SDM, by another letter dated 05.07.2016, sought a fresh report from the police. In response, the SHO sent letter no. 1018 dated 17.08.2016. In this fresh report, the SHO stated that there was a long pending dispute between both parties regarding plot nos. 8088, 8089 and 8090. He also stated that both sides were co-sharers and both claimed ownership over the land.
On 13.07.2017, vide letter no. 229, the SDM asked the Circle Officer to give his report on the three plots. The Circle Officer, through letter no. 470 dated 26.07.2017, reported that plot no. 8088, with an area of 12.5 decimals, had a building, trees, paddy crops and some vacant land in front of the building.
For plot no. 8089, with an area of 16 decimals, he reported the presence of paddy crops and trees. For plot no. 8090, with an area of 14 decimals, he reported paddy crops. On the very same day that this report was received, 26.07.2017, the SDM passed the impugned order.
By that order, the SDM initiated a proceeding under Section 146(1) CrPC, ordered attachment and appointed the Circle Officer, Piprahi, as receiver for plot nos. 8089 and 8090. This attachment order, passed three years after the Section 145 proceeding had been started, became the subject of the criminal revision before the Patna High Court.
The petitioners argued that the initial proceeding was only related to plot no. 8088 based on the complaint of Opposite Party No. 2. They said the proceeding under Section 145 was converted without hearing the parties and without evidence. They also complained that their documents, including the partition deed and the Consolidation Officer’s order, were not considered. According to them, 4.5 decimals of land originally shown in plot no. 8088 had already been legally shifted to plot no. 8090 and was in their possession.
They also pointed out that neither the Circle Officer’s nor the SHO’s reports mentioned any ditch in any of the plots. The reports did not say that any boundary wall of either side had been destroyed due to a ditch. Therefore, they submitted, there was no basis for saying that there was an emergency or an imminent breach of peace justifying action under Sections 144, 145 or 146 CrPC.
The petitioners further submitted that the proceeding under Section 145 was started without an enquiry report and that there was no emergent situation between the parties. They relied upon the Supreme Court decision in Bhinka and Others v. Charan Singh (AIR 1959 SC 960).
On the other hand, the State argued that the SDM had rightly passed the order, keeping in mind the emergent situation.
The High Court then summarised the key facts. It noted that the dispute was between co-sharers and that the petitioners had relied on a partition deed of 08.05.1956 and the revisional survey khatiyan in the name of their mother. They had also shown that the Consolidation Officer, Piprahi, in Case No. 09 of 1981, had corrected the survey entry by shifting 4.5 decimals from plot no. 8088 to plot no. 8090 by order dated 13.11.1981.
The Court also noted that the official reports (Circle Officer and SHO) did not show that the petitioners had dug any ditch resulting in any imminent danger of breach of peace between the parties.
The key legal question before the High Court was whether the SDM had complied with Section 146(1) CrPC while ordering attachment and appointment of a receiver.
The Court reproduced and explained Section 146(1) CrPC. Under this section, a Magistrate can attach the disputed property only in three specific situations:
First, if after making an order under Section 145(1), the Magistrate considers the case to be one of emergency.
Second, if he decides that none of the parties was then in possession as described in Section 145.
Third, if he is unable to satisfy himself as to which party was then in possession of the disputed land or subject.
The High Court emphasised that only when one of these three conditions exists can a Magistrate order attachment of the property and appoint a receiver.
In the present case, the Section 145(1) proceeding was initiated after conversion on 06.09.2014. At that time, the Magistrate did not record any finding that there was an emergency requiring attachment. Later, while passing the impugned order on 26.07.2017, the Magistrate also did not record any finding that neither party was in possession, or that he was unable to decide which party was in possession.
Therefore, from the impugned order, it appeared to the High Court that the SDM had passed the order of attachment and appointed a receiver “without fulfilling the three conditions” prescribed under Section 146(1) CrPC, and had done so in a perfunctory and mechanical manner.
The Court also took note of the long gap between initiation of the Section 145(1) proceeding in 2014 and the attachment order in 2017. This delay of three years itself indicated that there was no real emergency between the parties when the attachment was ordered.
The High Court then referred to the Supreme Court’s judgment in Ashok Kumar v. State of Uttarakhand and Others, reported in (2013) 3 SCC 366. In that case, the Supreme Court held that Sections 145 and 146 CrPC form a scheme to deal with situations where there is a likelihood of breach of peace. However, the ingredients that justify a Section 145 order do not automatically justify attachment under Section 146.
The Supreme Court had clarified that the Magistrate must be satisfied that an emergency exists before ordering attachment under Section 146. A mere apprehension of breach of peace is different from a case of emergency. The Magistrate must explain, with reasons, what circumstances led him to treat the situation as an emergency. There must be materials on record, such as submissions, documents or evidence, to justify such a conclusion.
Applying this law, the Patna High Court held that in this case the SDM had failed to consider the documents, submissions and evidence produced by the parties. The SDM had also not recorded any reasons showing an emergency or inability to decide possession. Therefore, the pre-conditions for ordering attachment under Section 146(1) were missing.
On these findings, the Court concluded that the SDM had wrongly invoked Section 146(1) CrPC. Consequently, it quashed the SDM’s order dated 26.07.2017 in Case No. 236 of 2014. The criminal revision application was allowed, with no order as to costs.
Why This Judgment Matters
This judgment is important for people involved in land disputes, especially co-sharers and villagers where boundary and possession disputes are common.
The Patna High Court has made it clear that a Magistrate cannot mechanically attach land and appoint a receiver under criminal law just because there is a dispute. There must be clear reasons recorded showing emergency or doubt about possession.
If the Magistrate does not explain why there is an emergency, or does not examine documents and evidence of both sides, his order of attachment can be set aside in higher court.
This protects landholders from sudden loss of control over their land through attachment orders passed without proper legal basis.
Legal Issues and Answers
- Issue: Could the Sub Divisional Magistrate validly attach the disputed land and appoint a receiver under Section 146(1) CrPC in the circumstances of this case?
Answer: No. The Patna High Court held that the SDM had not recorded any finding about emergency, lack of possession by either party, or inability to decide who was in possession. Therefore, the statutory pre-conditions of Section 146(1) CrPC were not satisfied, and the attachment order was quashed. - Issue: Was there material on record to justify treating the situation as an “emergency” under Section 146(1) CrPC?
Answer: No. The reports of the Circle Officer and the Station House Officer did not show any ditch or imminent breach of peace, and the three-year delay in passing the attachment order indicated absence of emergency. Hence, the requirement of emergency was not met.
Cases Cited by the Court
- Ashok Kumar v. State of Uttarakhand and Others, (2013) 3 SCC 366.
- The petitioners also cited Bhinka and Others v. Charan Singh, AIR 1959 SC 960, in argument, but the Patna High Court’s reasoning is primarily based on Ashok Kumar.
Case Details
Case Number: Criminal Revision No. 1042 of 2017, arising out of Complaint Case No. 236 of 2014, district Sheohar.
Case Title: Anirudh Sah @ Anirudh Prasad Sah and another v. The State of Bihar and another.
Coram: Hon’ble Mr. Justice Anil Kumar Sinha.
Citation: 2024 (1) PLJR 263.
Advocates: Mr. Anil Kumar for the petitioners; Mr. Parmanand Prasad for the respondents.
Nature of the Case: Criminal revision against an order of the Sub Divisional Magistrate, Sheohar, initiating proceedings under Section 146(1) CrPC, attaching land and appointing a receiver in a land possession dispute between co-sharers.
Date of Patna High Court Judgment: 03.11.2023 (C.A.V.; CAV date 25.09.2023).
Impugned Order: SDM, Sheohar’s order dated 26.07.2017 in Case No. 236 of 2014, attaching plot nos. 8089 and 8090 and appointing Circle Officer, Piprahi, as receiver.
Link to Judgment: View full judgment on Patna High Court website
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