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2006 DIGILAW 661 (PAT)

Sri Udai Narain Singh v. State Of Bihar

2006-08-02

MRIDULA MISHRA

body2006
Judgment 1. Heard the counsel for the petitioners and the counsel appearing for opposite party no. 2. 2. Petitioners have challenged the order dated 4.2.2004, passed in Criminal Revision No. 17 of 2004 passed by the Sessions Judge, Aurangabad, confirming the order, dated 10.1.2004, passed by the Sub-divisional Magistrate, Daudnagar, in Case No. 1487 of 2003. By order dated 10.1.2004, the Sub-divisional Magistrate, Daudnagar, has converted proceeding under Sections 144 of the Criminal Procedure Code into proceeding under Section 145 of the Criminal Procedure Code. 3. The grounds on which the petitioners have challenged the impugned orders is that the order converting proceeding under Sec. 144 into proceeding under Sec. 145 of the Criminal Procedure Code is completely without jurisdiction as it do not indicate the satisfaction of the Magistrate regarding apprehension of breach of peace in between the parties relating to a particular piece of land. The Magistrate, initiating or converting a proceeding under Sec. 145(1) of the Criminal procedure Code must be satisfied that a dispute relating to land existed and that dispute is likely to cause breach of peace. He must report both these reasons in his order. Since the impugned order does not mention these two conditions, the conversion of proceeding under Sec. 145 of the Criminal Procedure Code completely without jurisdiction and is fit to be quashed. It has been submitted that in the impugned order simply the Magistrate has stated that the documents placed before him by the parties do not indicate that which one of them is in possession of the disputed land. Thus, order do not fulfill the condition for converting proceeding under Sec. 145 of the Criminal Procedure Code. 4. Counsel for the petitioners has placed reliance on decision reported in A.I.R. 1970 Patna 386 (Newa Lal Sharma & Ors. Vs. Bikku Sharma & Ors. wherein it has been held "the provisions under Sec. 145(1) are mandatory and must be followed scrupulously, order not mentioning reasons for apprehension of breach of peace, order is defective." 5. On perusal of the impugned orders, I find that in the order, dated 10.1.2004, the Magistrate has not mentioned that there was any apprehension of breach of peace relating to the disputed land. The reason assigned for initiation of proceeding under Sec. 145 of the Criminal Procedure Code is not sufficient. On perusal of the impugned orders, I find that in the order, dated 10.1.2004, the Magistrate has not mentioned that there was any apprehension of breach of peace relating to the disputed land. The reason assigned for initiation of proceeding under Sec. 145 of the Criminal Procedure Code is not sufficient. The revisional Court also failed to consider this mandatory condition, as such, the order dated 4.2.2004, passed in Criminal Revision No. 117 of 2004 passed by the Sessions Judge, Aurangabad, as well as the order dated 10.1.2004, passed in Case No. 1487 of 2003 by the Sub-divisional Magistrate, Daudnagar, are quashed. 6. Accordingly this application is allowed.