[Section 145 Cr.PC] Land Attachment Order Cannot Be Passed Merely On Tehsildar's Report Apprehending Breach Of Peace: J&K High Court

The Jammu & Kashmir High Court has set aside an order passed by the Additional District Magistrate, Kupwara, under Section 145 of the Criminal Procedure Code, holding that the attachment of land and handing over of possession to third parties was done without adhering to the statutory procedure.

A bench of Justice Vinod Chatterji Koul said that a magistrate must follow due procedure by issuing notice to parties and, after recording satisfaction, non-compliance with these requirements renders the order unsustainable.

The court said, “It appears from the reading of order impugned... that it has been passed in breach of both the provisions of law [Sections 145(1) and 146(1) CrPC], therefore, such order cannot sustain.”

The case arose out of a land dispute where the ADM, based on a report submitted by the Tehsildar, directed the attachment of the property and its possession to be handed over to the Lumberdar and Sarpanch.

The report claimed that due to the dispute, there was an apprehension of breach of peace, and the land had already been taken over by local representatives.

However, the court noted that under Section 145(1) CrPC, the Magistrate must:

1. Record satisfaction in writing that a dispute exists likely to cause a breach of peace;

2. State the grounds of such satisfaction;

3. Issue notice to the parties to appear and submit written statements regarding actual possession.

The court observed that none of these mandatory steps were followed before the land was attached.

It observed that “what was required to be done once the petition was filed before the Additional District Magistrate was to follow the procedure as provided under Section 145 CrPC."

Further, the court pointed out that attachment of property, if at all necessary, should have been done under Section 146 CrPC, which allows such action only in case of emergency, or when possession is unclear or disputed.

It clarified that "order of attachment could be passed under Section 146 of CrPC and not under Section 145(1).

Holding that the ADM's order was passed in violation of law, the court set it aside and remanded the matter back to the Additional District Magistrate, Kupwara, to proceed in accordance with the procedure laid down in Sections 145 and 146 CrPC.

APPEARANCE:

T. A. Lone, Advocate for Petitioners

Sheikh Manzoor, Advocate FOR Respondent.

Case-Title: MOHAMMAD AKBAR SHEIKH vs MST JANA AND ORS

Citation: 2025 LiveLaw (JKL) 272

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