Section 146 CrPC: Power to Attach Subject of Dispute and Appoint Receiver
Section 146 of the Code of Criminal Procedure, 1973 empowered an Executive Magistrate, in specified circumstances arising from a dispute concerning land or water under Section 145 CrPC, to attach the subject of dispute and, where appropriate, appoint a receiver.
What did Section 146 CrPC provide?
The provision supplemented Section 145 CrPC. Section 145 dealt with disputes concerning land, water or their boundaries that were likely to cause a breach of peace. Section 146 provided a temporary protective mechanism when the Magistrate could not safely leave the disputed property in the possession of either side.
- The Magistrate first had to make an order under Section 145(1) CrPC.
- Attachment could be ordered in a case of emergency.
- Attachment could also be ordered if none of the parties was found to be in the relevant possession.
- It could be ordered when the Magistrate was unable to decide which party was in such possession.
- The attachment was temporary and remained subject to determination of possessory rights by a competent court.
- The Magistrate could withdraw attachment when the likelihood of breach of peace no longer existed.
Text and meaning of Section 146(1) CrPC
Section 146(1) - Attachment of the subject of dispute: After making an order under Section 145(1), the Magistrate could attach the subject of dispute if the case was one of emergency, if none of the parties was in the possession contemplated by Section 145, or if the Magistrate could not satisfy himself as to which party was in such possession.
The attachment could continue until a competent court determined the rights of the parties concerning the person entitled to possession. The Magistrate could withdraw the attachment earlier if satisfied that there was no longer any likelihood of breach of peace regarding the property.
When could the Magistrate attach the property?
Section 146(1) identified three situations. First, an emergency requiring immediate preventive action. Second, a finding that none of the parties was in the possession referred to in Section 145. Third, the Magistrate being unable to determine which party was in possession at the relevant time. The object was preservation of peace and the property pending adjudication of possessory rights by the competent forum.
Meaning of attachment under Section 146
Attachment under Section 146 was a preventive measure connected with the Magistrate's jurisdiction to avert a breach of peace. It did not itself amount to a final adjudication of ownership or title. Questions of title and final entitlement to possession remained for the competent civil court or other competent court to determine.
Section 146(2): Appointment of receiver
Where the Magistrate attached the subject of dispute and no receiver had already been appointed by a Civil Court, Section 146(2) permitted the Magistrate to make suitable arrangements for looking after the property or to appoint a receiver. Subject to the Magistrate's control, such a receiver had the powers of a receiver appointed under the Code of Civil Procedure, 1908.
What happened if a Civil Court later appointed a receiver?
If a Civil Court subsequently appointed a receiver for the same subject of dispute, the Magistrate was required to direct the receiver appointed under Section 146 to hand over possession to the Civil Court's receiver and then discharge the Magistrate's receiver. The Magistrate could also pass incidental or consequential orders considered just.
Section 145 and Section 146 CrPC: How they worked together
| Provision | Purpose |
|---|---|
| Section 145 CrPC | Preventive proceedings where a dispute concerning land or water was likely to cause breach of peace, with focus on actual possession. |
| Section 146 CrPC | Temporary attachment and, where necessary, appointment of a receiver in the circumstances specified by Section 146. |
Important legal effect
Proceedings under Sections 145 and 146 were preventive in character. The Magistrate's function was directed to maintaining public peace and protecting the subject of dispute pending lawful determination of possession. A Section 146 attachment therefore should not be treated as a substitute for a final civil adjudication of title.
Position after commencement of BNSS
The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024 and replaced the CrPC framework for new criminal procedure, subject to applicable saving and transitional provisions. Readers dealing with proceedings after that date should also examine the corresponding BNSS provisions and the facts governing which procedural law applies.
Related CrPC provisions
For the surrounding statutory scheme, see Section 145 CrPC - dispute concerning land or water likely to cause breach of peace, Section 147 CrPC - dispute concerning right of use of land or water, and Section 148 CrPC - local inquiry.
This page is a general legal information resource on the pre-BNSS Code of Criminal Procedure, 1973 and is not a substitute for advice on the facts of a particular proceeding.