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2003 DIGILAW 879 (JHR)

Chandrika Mishra v. State Of Jharkhand

2003-07-23

LAKSHMAN URAON

body2003
JUDGMENT Lakshman Oraon, J. 1. This is an application under Section 482 of the Code of Criminal Procedure for quashing the entire proceeding, including the order dated 26.10.2002, passed by the learned Sub-. Divisional Magistrate, Chatra, in Case No. 68 of 2002, whereby, he has converted the proceeding under Section 144 of the Code of Criminal Procedure into a proceeding under Section 145 of the Code of criminal Procedure, though earlier proceeding in respect of the same property and in between the same parties, initiated vide Case No. 36 of 2002, was dropped on 13.8.2002, with the observation that the opposite party may take recourse of Civil Suit, relying on a decision, reported in 2001 (1) JCR 21 (Jhr), Kangali Charan Goswami v. State of Bihar and Ors. 2. It appears that regarding the land in question of plot No. 65, pertaining to khata No. 28, measuring 1.12 Acres, out of 2.40 Acres of land of Village Pachmo, Police Station - Itkhori, there was a proceeding under Section 144 of the Code of Criminal Procedure. In that proceeding, both the parties appeared and filed their show causes, claiming the property in question by virtue of inheritance and succession. The claims of the parties were such that it could not have been decided in a proceeding under Section 144 of the Code of Criminal Procedure, as serious question of title was raised. Accordingly, the learned Sub-Divisional Magistrate, Chatra, by order dated 13.8.2002, dropped the proceeding, initiated by opposite party No. 2, Baikunth Mishra and others, with observation that they may seek their remedies before the appropriate civil Court. However, again opposite party No. 2 (1st party) made application before the learned Sub-Divisional Magistrate, Chatra, for initiation of a proceeding under Section 144 of the Code of Criminal Procedure against these petitioners in respect of the same properties. The learned Sub-Divisional Magistrate registered case No. 68 of 2002 and initiated a proceeding under Section 144 of the Code of Criminal Procedure, by order dated 29.8.2002. These petitioners have been served with notice dated 26.10.2002 to appear and filed their written state-ment(s) in respect of their claim regarding the disputed lands. 3. The learned Sub-Divisional Magistrate registered case No. 68 of 2002 and initiated a proceeding under Section 144 of the Code of Criminal Procedure, by order dated 29.8.2002. These petitioners have been served with notice dated 26.10.2002 to appear and filed their written state-ment(s) in respect of their claim regarding the disputed lands. 3. Assailing the said order, learned counsel for the petitioners has relied upon the case of Kangali Charan Goshwami v. State of Bihar and Ors., (supra) and stated that the learned Sub Divisional Magistrate, Chatra, has already dropped the earlier proceeding regarding the same land vide Case No. 36 of 2002, observing that since it is purely a matter of civil dispute, 1st Party (Opp. party No. 2) can very well take recourse of civil Court for the grievances herein. Even then, this proceeding under Section 144/ 145 of the Code of Criminal Procedure has again been initiated against these petitioners. On these ground, it was prayed that the present Criminal Misc. Petition be allowed and the entire proceeding of Case No. 68 of 2002, pending in the Court of learned Sub-Divisional Magistrate, Chatra, be quashed. 4. Opposite party No. 2 Baikunth Mishra filed a petition before the learned Sub-Divisional Magistrate, Chatra, alleging therein, that there is apprehension of breach of peace regarding claiming of possession over the land, measuring 1.12 Acres of Plot No. 65, pertaining to khata No. 28 of Village Pachma, Police Station, Itkhori. The learned Sub-Divisional Magistrate having apprehended immediate danger and nuisance, just to restrain either of the parties to go over the disputed plot, started a proceeding under Section 144 of the Code of Criminal Procedure, only to maintain peace and after hearing both the parties, when they appeared, he found a case regarding claiming of possession over the disputed plot by both the parties. As such, proceeding under Section 144 of the Code of Criminal Procedure was converted into a proceeding under Section 145 of the Code of Criminal Procedure. As such, proceeding under Section 144 of the Code of Criminal Procedure was converted into a proceeding under Section 145 of the Code of Criminal Procedure. Section 144 of the Code of Criminal Procedure is an executive order, only to maintain peace for the safety of human life or to restrain any riot or affray but when there is a claim and counter claim over the land in question, as in the present case, wherein both the parties are claiming the land by virtue of inheritance and succession of the" ancestral properties, there is apprehension of breach of peace. Sec. 145(1) of the Code of Criminal Procedure provides as follows : "(1) Whenever an Executive Magistrate is satisfied from a report of a police officer of upon ether information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute." 5. The proceeding under Section 145 of the Code of Criminal Procedure is an urgent proceeding for maintenance of public safety and tranquility. Its object is to prevent the breach of peace and to provide lawful remedy for determining the claim of the parties with regard to actual possession over the property in dispute. The Magistrate in course of proceeding, if finds that there is no any further apprehension of breach of peace, it is within his jurisdiction to order, dropping the proceeding, as provided under Section 145(5) of the Code of Criminal Procedure. This proceeding is partly administrative one and significantly power of initiating a proceeding under this section has been entrusted to the Executive Magistrate. 6. This proceeding is partly administrative one and significantly power of initiating a proceeding under this section has been entrusted to the Executive Magistrate. 6. Learned counsel for the petitioners has assailed this second initiation of the proceeding and issuance of notice, only on the ground that earlier proceeding under the same section in between the same parties and in respect to same land in dispute was dropped, with the observation that it is purely of a civil nature and, therefore, their grievances will be redressed by a competent Court of law, having civil Jurisdiction. Section 145 of the Code of Criminal Procedure is only to ascertain the possession of the parties without going into their title whereas in a civil suit, the title, possession and restoration of the matters are to be decided. When there is repeated apprehension of breach of peace, then there is no bar for initiation of a fresh proceeding under. Section 144/145 of the Code of Criminal Procedure. It is a settled principle of law that when a title suit is pending in between the parties in respect of the same disputed land, then a parallel proceeding under Section 144/145 of the Code of Criminal Procedure is not maintainable. In the present case, I find that both the parties are claiming land in capacity of either inheritance or succession of the ancestral property. No doubt, it is a case of civil nature, but when there is ,no civil suit pending in between the parties and there is apprehension of breach of peace regarding claiming of land by the parties, there is no bar in initiation of a proceeding afresh under Section 144/145 of the Code of Criminal Procedure. I have already mentioned above that both the sections are preventory one to restrain both the parties from taking law in their hands to disturb public tranquility as also breach of peace. 7. When considered all these facts, I do not find any illegality in the order of the learned Sub-Divisional Magistrate, Chatra, while initiating a fresh proceeding under Section 144/145 of the Code of Criminal Procedure. The learned Sub-Divisional Magistrate has issued notices to both the parties, while converting the proceeding under Section 144 of the Code of Criminal Procedure into a proceeding under Section 145 of the Code of Criminal Procedure. The learned Sub-Divisional Magistrate has issued notices to both the parties, while converting the proceeding under Section 144 of the Code of Criminal Procedure into a proceeding under Section 145 of the Code of Criminal Procedure. Having converted the proceeding into a proceeding under Section 145 of the Code of Criminal Procedure, the learned Magistrate also directed both the parties to adduce evidences, oral or documentary, in respect of their claim and counter claim over the land in dispute. Now it is for the parties to appear and claim their possession by adducing evidences and to satisfy the Court, so that possession over the disputed land of either parties may be declared, till they are evicted by a competent Court of civil jurisdiction. 8. In the result, I do not find any merit in this Criminal Misc. Petition, filed by these petitioners, which is, accordingly, dismissed.