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2003 DIGILAW 501 (GAU)

Md. Raisuddin v. Sahidul Islam

2003-11-12

P.G.AGARWAL

body2003
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. K.K. Mahanta learned counsel for the petitioner and Mr. A. Sharif, learned counsel for the respondents/opp. party. 2. On an application filed by the petitioner First Party alleging apprehension of breach of peace in respect of the land measuring IB-IK covered by Patta No. 246 Dag No. 90 situated at village Hatimuria, under Mouza Moirabari in the district Morigaon, herein after referred to as the D.L. a police report was called for and thereafter, on being satisfied, the learned Magistrate drawn up proceeding under Section 145 Cr.P.C. vide order dated 8.4.1997 in Mr. No. 65/97. On conclusion of the enquiry, the learned Executive Magistrate declared possession over the D.L., in favour of the petitioner first party whereupon the respondents second party Sahidul Islam preferred a Criminal Revision before the learned Sess. Judg and the matter was remitted back to the trial court for fresh disposal after affording an opportunity to both sides for further evidence. Thereafter, the said application under Section 145 Cr.P.C. was disposed of and the respondents-Second party filed a Revision being Criminal revision No. 56/2000 and the learned Sessions Judge, Morigaon vide order dated 11.9.2001 allowed the revision and set aside the order. Hence the present revision. 3. On perusal of the impugned order passed by the learned Sess. Judge, Morigaon, we find that the petitioner first party was non suited on the following count : "The learned counsel for the petitioner submits that the dispute is a private one, and as such, a proceeding under Section 145 Cr.P.C. cannot be drawn. Upon Perusal of the impugned order, I have come to the decision that the dispute is a private one between two private parties. The impugned order states -- "The evidence produced by both the parties hardly say of any breach of peace over the possession of the 1st party. It is crystal clear that there was no breach of peace over the disputed land. In (Gauhati High Court), the Hon'ble High Court has held that proceeding under Section145 cannot be drawn up unless the Magistrate is satisfied that the private dispute may disturb the peace or tranquility of the area". As peace or tranquility of the area was not disturbed. I am of the considered opinion that the proceeding under Section 145 Cr.P.C. cannot be drawn in this case." 4. As peace or tranquility of the area was not disturbed. I am of the considered opinion that the proceeding under Section 145 Cr.P.C. cannot be drawn in this case." 4. There is no dispute at the Bar that the proceeding under Section 145 Cr.P.C. does not lie in the matter of private disputes. There is a decision of this Court in the case of Moqbul Hague v. Sahidul Islam reported in 1996 2 GLR 167. 5. The learned counsel for the respondents has also submitted that in absence of evidence regarding apprehension of breach of public peace, the learned Session Judge has rightly passed the impugned order. 6. The question that arises in this case is that whether the respondents second party can be allowed to raise this question for the first time before the Revisional Court after long 4 years of drawal of the proceeding. The proceeding was drawn up in the year 1997. The respondent second party did not challenge the drawal of the proceeding in any manner, on the contrary they participated in the enquiry and from the material on record we find that the respondent second party got another opportunity to challenge the drawal of proceeding before the revisionary court in Crl. Rev. No. 34/99 preferred by the first party. 7. We have perused the order passed on 9.12.1999 in the said CM No. 34/99 and find that the second party never raised the question there. The matter was remitted back and both the parties adduced their evidence on the point of actual physical possession over the DL as both sides claimed that the DL is in their possession. 8. There is another aspect of the matter to which we would like to address ourselves. There is no dispute as stated above for drawal of proceeding under Section 145 Cr.P.C. The Executive Magistrate being satisfied that the dispute is likely to cause breach of public peace, passed the order for drawal of proceeding under Section 145 Cr.P.C. There cannot be any proceeding under Section 145 Cr.P.C. in respect of private dispute. The question, in our mind, is whether the parties are required to adduce evidence during enquiry that there was an apprehension of breach of public peace or that such apprehension is still continuing? When guidance is needed me may to look into the provisions of Sub-clause (5) of Section 145 Cr. The question, in our mind, is whether the parties are required to adduce evidence during enquiry that there was an apprehension of breach of public peace or that such apprehension is still continuing? When guidance is needed me may to look into the provisions of Sub-clause (5) of Section 145 Cr. P.C. which reads as follows : "Sub-clause - 5 Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed ; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final." Clause 5 which gives liberty to the parties of the proceeding to show that no such dispute exists or is existed which rules out the requirement that the parties are required lead evidence to that effect. 9. In the instant case, there is no evidence to show that the respondents second party at any point of time filed any application under the Sub-clause (5) of Section 145 Cr. P.C. They also did not raise any such plea when the matter was brought before the Revisional Court in CM No. 34/99 on the contrary, they accepted the direction for participating in the proceeding and eventually got an order in their favour. However, the said order was challenged by the first party-petitioner before the Revisional Court and allegedly after four years the learned Sessions Judge dismissed the entire proceeding, on the ground that the evidence led by the parties is silent on this point. 10. In our view, the parties are not required to laid any evidence regarding the apprehension of any breach of peace except, in case, they prefer to do so under Sub-clause (5) of Section 145 Cr.P.C. vide impugned order, the revision petition was dismissed not on merit but on above unwarranted view. 11. We, therefore, set aside the judgment and order dated 11.9.2001 passed by learned Sessions Judge and direct the Sessions Judge, Morigaon to decide the matter on merit. Both the parties shall appear before the Sessions Judge, Morigaon on 17.12.2003. Send down the records forthwith.