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2012 DIGILAW 530 (GAU)

Kanak Deka v. State of Assam

2012-04-30

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. With the help of this application, made under Section 482, Cr PC, the petitioner has put to challenge the order, dated 21.09.2010, passed by the learned Additional District Magistrate, Darrang, Mangaldoi, in Misc. Case No. 435/2010, whereby a proceeding, under Section 145, Cr PC, has been drawn in respect of the disputed land and the disputed land has been placed under attachment in exercise of power under Section 146(1), Cr PC. Heard Mr. N.K. Baruah, learned counsel for the petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing for opposite party No. 1. Also heard Mr. B.D. Goswami, learned counsel, appearing for opposite party No. 2. 2. While considering the present application, made under Section 482, Cr PC, it needs to be noted that according to the very petition, filed by the opposite party No. 2, which has become the basis for drawing of the proceeding, in question, it had been mentioned by opposite party No. 2 herein, while seeking initiation of the proceeding, in question, that an agreement for lease of the land, in question, was entered into between the parties concerned for the purpose of running a brick industry on the disputed land and, pursuant to this lease, possession of the land, in question, had been handed over to the present petitioner. 3. In the face of the admission, so made by the first party (i.e., opposite party No. 2 herein) himself, as regards the fact that the possession of the land, in question, had been handed over to the present petitioner, the proceeding, under Section 145, Cr PC, could not have been drawn and was misconceived inasmuch as Section 145, Cr PC is applicable to a case, where there is a dispute concerning land or boundaries thereof, which is likely to cause breach of peace. Sub-section (1) of Section 145, Cr PC provides that whenever an Executive Magistrate is satisfied from a report of a police officer or upon other 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 a pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. 4. A bare reading of sub-section (1) of Section 145 shows that the conditions precedent for passing an order, under Section 145(1), are that the Magistrate must be satisfied, the satisfaction being that there is a dispute with regard the land or boundaries thereof, which is likely to cause breach of peace. 5. What is, however, pertinent to note, now, is that sub-section (1) of Section 145, Cr PC requires the Magistrate to direct the parties to put in their written statements in respect of their respective claims as regards the fact of actual possession of the subject of dispute. Coupled with this, Section 145(4) requires the Magistrate to determine, on the basis of the written statements and the evidence adduced by the parties, as to who was, on the date of the drawing of the proceeding, in possession of the subject of the dispute. Unless, as laid down under the proviso to sub-section (4) of Section 145, the person, who is found in possession of the subject of dispute on the date of the drawing of the proceeding, is one, who came into possession by dispossessing the other party wrongfully within two months from the date of the police report or other information, which made the Magistrate initiate the proceeding. 6. In short, thus, a Magistrate, upon drawing of the proceeding under Section 145, Cr PC, has to determine, if possible, in exercise of his power under Section 145(4), Cr PC, as to who was in possession of the disputed land on the date of drawing of the proceeding. 6. In short, thus, a Magistrate, upon drawing of the proceeding under Section 145, Cr PC, has to determine, if possible, in exercise of his power under Section 145(4), Cr PC, as to who was in possession of the disputed land on the date of drawing of the proceeding. Conversely, the Magistrate cannot draw a proceeding under Section 145, Cr PC, if the materials on record clearly indicate that the person, who is sought to be evicted by invoking the Magistrate's jurisdiction under Section 145, Cr PC, had been in possession of the disputed land for a period longer than two months before the date, when either the police report was made or the information, which could enable the Magistrate to draw the proceeding, was given. 7. In fact, the chief grievance of the opposite party No. 2 herein, as the first party in the Misc. Case, has been that some of the terms and conditions of the lease agreement, which he was made to sign in a hurry, had not been incorporated in terms of the agreement, which had been actually reached by the parties concerned. Whether the lease deed aforementioned is in tune with the terms of the agreement, which had been reached by the parties, or whether the present petitioner had played fraud, are the questions, which cannot be determined in a proceeding under Section 145, Cr PC. This apart, even the order, dated 21.09.2010, passed by the learned Magistrate, clearly reveals that the first party (i.e., opposite party No. 2 herein) had submitted before the learned Magistrate that he would institute a civil suit in the Court of competent jurisdiction for cancellation of the lease deed aforementioned. 8. In the circumstances indicated above, the conditions precedent, in the present case, for invoking the jurisdiction, under Section 145(1), Cr PC, did not exist. The impugned order is, therefore, wholly without jurisdiction and cannot be sustained. 9. Though it has been agitated by Mr. 8. In the circumstances indicated above, the conditions precedent, in the present case, for invoking the jurisdiction, under Section 145(1), Cr PC, did not exist. The impugned order is, therefore, wholly without jurisdiction and cannot be sustained. 9. Though it has been agitated by Mr. Goswami, learned counsel for the opposite party, that the preliminary order is an interlocutory order, it may be pointed out that the preliminary order, whereby a proceeding under Section 145(1), Cr PC is drawn, cannot be regarded an interlocutory order inasmuch as the case at hand is one, where the conditions precedent, as indicated above, enabling an Executive Magistrate to invoke jurisdiction under Section 145(1), did not exist and, yet, a proceeding has drawn by invoking jurisdiction under Section 145(1). Such an order, regarded as a preliminary order, cannot be said to be an interlocutory order. This apart, when an order is without jurisdiction, such an order is void ab initio and can be in interfered with in exercise of inherent power of the High Court, for, allowing such an order to survive would be nothing, but abuse of the process of the Court and it is, amongst others, to prevent abuse of the process of the Court that the inherent power has been conferred on the High Court by Section 482, Cr PC. 10. In the result and for the reasons discussed above, this criminal petition, made under Section 482, Cr PC, succeeds and the impugned order, dated 21.09.2010, aforementioned and the order, dated 24.09.2010, passed by the learned Additional District Magistrate, Darrang, Mangaldoi, in Misc. Case No. 435/2010, are hereby set aside and quashed. With the above observations and directions, this Criminal Petition stands disposed of.