Monthly Archives: September 2013

Object of Section 145 compared with powers under Section 146 CrPC

The object of Section 145 CrPC is merely to maintain law and order and to prevent breach of peace by maintaining one or the other of the parties in possession and not for evicting any person from possession. The scope of enquiry under Section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute.
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.
The ingredient necessary for passing an order under Section 145(1) of the Code would not automatically attract for the attachment of 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 a breach of peace. The Magistrate, before passing an order under Section 146 of the Code, 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. Ashok Kumar v. State of Uttarakhand and others, (2013) 3 SCC (Cri) 177.

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Filed under breach of peace, Criminal Law, Uncategorized

Contract of Guarantee vis-à-vis Contract of Indemnity

A contract of guarantee is defined in Section 126 of the Indian Contract Act, 1872 which says that a “contract of guarantee” is a contract to perform the promise or discharge liability of a third person in case of his default. The person who gives the guarantee is called “surety”, person in respect of whose default the guarantee is given is called the “creditor”. A guarantee, therefore, is an accessory. It is essentially a contract of accessory nature being always ancillary and subsidiary to some other contract or liability on which it is founded without support of which it must fail. The distinction between the “contract of guarantee” and “contract of indemnity” comes out from the definitions of the two. The phrase “contract of indemnity” is defined in Section 124 of the Indian Contract Act, 1872 which says that a contract by which one party promises to save the other from loss caused to him by the conduct of the petitioner himself or by the conduct of any other person is called “contract of indemnity”. One of the apparent distinction between the two is that a “contract of guarantee” requires concurrence of three persons, namely, the principal debtor, surety and the creditor, while the “contract of indemnity” is a contract between two parties and promisor enters into such contract with other party. In other words, a person who is party to a contract, if executes a promise to other party to save him from loss on account of promisor’s conduct or by the conduct of any other person, it is a “contract of indemnity”, while for the purpose of “contract of guarantee”, it requires presence of three parties at least. Punjab National Bank v. Ram Dutt Sharma, 2013 (120) RD 507.

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Filed under Civil Law, Contract Law