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2013 DIGILAW 401 (PAT)

Shrikant Prasad @ Chirkut Sah v. State of Bihar

2013-03-20

ASHWANI KUMAR SINGH

body2013
ORDER Heard Mr.Amrendra Nath Verma, learned counsel for the petitioners, Mr. Binod Kumar Sinha, learned counsel for the respondent no.5 and Mr. Jai Shankar Barnwal, learned counsel for the State. 2. The prayer of the petitioners in the present writ petition is for quashing the order dated 11.8.2011 passed in Cr. Revision No.64/9 of 2011/2011 by the learned 1st Additional District and Sessions Judge, East Champaran, Motihari confirming the order dated 24.12.2010 passed in Case No.339M of 2001 by the Sub. Divisional Magistrate, Pakridayal. 3. Learned counsel for the petitioners submitted that the petitioners are members of a Joint Hindu Family and the petitioner no.1 is its Karta. On 30.11.2007, the petitioner nos. 1, 4 and 5 as also the respondent nos. 10 and 11 purchased the land in question from Jamabandi Raiyat respondent nos. 6 to 8 through registered sale deed appertaining to Khata No.215, Plot No.1853 area 5 Katha 10 Dhurs and Khata No.347 Plot No.1668 area 14 Katha 13 Dhurs. Later on, the respondent nos. 10 and 11 vended their so purchased land to petitioner nos.1 and 5 once again through the registered sale deed. The vendors delivered actual physical possession to the petitioners right after their purchase and the petitioners, in turn, raised a brick built construction thereon with shops in the front inducting tenants and a house in the back residing with their family. 4. Learned counsel further submitted that a proceeding under Section 144 of the Code of Criminal Procedure (for short “the code”) bearing Case No.623KM of 2008 was initiated with respect to the petitioners’ purchased and possessed land by the learned Sub. Divisional Magistrate, Pakridayal on an application filed by respondent no.5. On notice, the petitioners appeared in the matter and filed their show cause. Finding a brick built construction raised on the land and possessed by the petitioners as per the police report dated 20.12.2008 in the matter, the learned Magistrate dismissed the proceeding under Section 144 of the Code by order dated 18.4.2009. 5. On notice, the petitioners appeared in the matter and filed their show cause. Finding a brick built construction raised on the land and possessed by the petitioners as per the police report dated 20.12.2008 in the matter, the learned Magistrate dismissed the proceeding under Section 144 of the Code by order dated 18.4.2009. 5. Learned counsel further submitted that prior to the petitioners’ purchase of the land, a proceeding under section 145 of the Code bearing Case No.339M of 2001 had been initiated for the same land by the petitioners’ vendors against the respondent no.5 wherein the possession of the land in question had been duly declared by the Sub Divisional Magistrate, Pakridayal vide order dated 23.2.2002 in favour of the petitioners’ vendors. However, the respondent no.5 preferred Cr. Revision No.543 of 2005 against the order declaring the possession of the petitioners’ vendors on the land in question. Learned counsel submitted that vide order dated 10.2.2009, the learned Additional Sessions Judge, FTC-4, Motihari, remanded the matter back to the original authority with a direction to have local inspection of the land conducted by the Sub Divisional Magistrate, Pakridayal and, thereafter, to decide the matter afresh. After remand, the respondent no.5 prayed for petitioners’ addition as the first party interveners in the proceeding under section 145 of the Code pending since before the petitioners’ purchase of the land. The prayer was allowed and the petitioners were made the first party in Case No.339 of 2001. On 9.6.2010, the learned Sub Divisional Magistrate, Pakridayal conducted a local inspection of the land in question and thereafter, by order dated 24.12.2010 declared the possession of respondent no.5 on the land in question. 6. Learned counsel for the petitioners submitted that the petitioners challenged the aforesaid order dated 24.12.2010 passed by learned Sub Divisional Magistrate, Pakridayal in Cr. Revision No.64 of 2011. The learned 1st Additional Sessions Judge, East Champaran, Motihari heard the revision application filed on behalf of the petitioners and dismissed the same by order dated 11.8.2011 after holding that the entire proceeding of Case No.339M of 2001 vitiated owing to non-recording of satisfaction about existence of the conditions necessitating initiation of a proceeding under Section 145 of the Code. The revisional court while dismissing the revision application upheld the possession of respondent no.5 over the land in question. The revisional court while dismissing the revision application upheld the possession of respondent no.5 over the land in question. The aforesaid orders dated 24.12.2010 passed by the learned Sub Divisional Magistrate, Pakridayal and dated 11.8.2011 passed by the learned 1st Additional Sessions Judge, East Champaran, Motihari are under challenge in the present writ petition. 7. Learned counsel submitted that the order passed by the revisional court is bad for the reasons that when the court found the initiation of the proceeding to be bad, the revision application ought to have been allowed. 8. Learned counsel further submitted that a proceeding under Section 145 of the Code is initiated as an emergent measure, if there is apprehension of breach of peace relating to immovable property between the parties. However, in the present case it would appear that the proceeding was initiated in 2001 and the final order was passed Sub Divisional Magistrate, Pakridayal on 24.12.2010. 9. Per contra, learned counsel for respondent no.5 submitted that there is no error in the impugned orders passed by the learned Sub Divisional Magistrate, Pakridayal and the learned Additional Sessions Judge-1, East Champaran, Motihari. The possession of respondent no.5 was declared in view of the evidence led in the court and local inspection conducted by the Sub Divisional Magistrate, Pakridayal. Learned counsel for the State has also adopted the arguments advanced on behalf of the learned counsel appearing for respondent no.5. 10. Having heard the rival submissions made on behalf of the parties, I am of the view that the writ petition must succeed. It is essential for the assumption of jurisdiction by the Magistrate under Section 145 of the Code that he should be satisfied either from the police report or from the other information which would include an application by the party dispossessed that there is likelihood of breach of peace. The mere fact that there is dispute concerning land is clearly not sufficient by itself to give him jurisdiction. An order under this section must be a speaking order. The failure to indicate ground that there is likelihood of breach of peace vitiates the order. Where the order is vitiated, the Magistrate fails to get the jurisdiction to hold an enquiry or pass any order under this section. An order under this section must be a speaking order. The failure to indicate ground that there is likelihood of breach of peace vitiates the order. Where the order is vitiated, the Magistrate fails to get the jurisdiction to hold an enquiry or pass any order under this section. The defects in the preliminary order like failure to set out the grounds of his satisfaction regarding likelihood of breach of peace relating to immovable property would make the subsequent proceeding without jurisdiction and erroneous in law. At this stage, I would like to quote paragraphs 3 and 4 of the impugned order dated 11th August, 2011 passed in Cr. Revision No.64/9 of 2011/2011 by the learned 1st Additional District and Sessions Judge, East Champaran, Motihari which reads as under:— “3. Heard both sides and perused the record. On perusal of record it appears that on 19.9.2001 the learned Magistrate had converted the proceeding u/s 144 Cr.P.C into a proceeding u/s 145 Cr.P.C. In this connection the well settled principle of law is that conversion of proceeding u/s 144 Cr.P.C into a proceeding u/s 145 Cr.P.C is misnomer and so the Magistrate ordering initiation of proceeding u/s 145 Cr.P.C has to record in writing, the ground of his satisfaction in regard to apprehension of breach of peace due to land dispute but in the instant case order dated 19.9.2001 the learned Magistrate has not recorded his finding regarding apprehension of breach of peace due to land dispute rather learned Magistrate has converted proceeding u/s 144 Cr.P.C into a proceeding u/s 145 Cr.P.C only because of controversy in regard of possession. As such the very inception of proceeding u/s 145 Cr.P.C has become illegal because of non-recording of reason in regard of apprehension of breach of peace due to land dispute by the Magistrate in his order dated 19.9.2001. Therefore, the entire proceeding has been vitiated. However, the finding of the learned lower court in regard to possession of opposite party are based on proper appreciation of the evidence on record and so the possession of opposite party (second party before the court below) should not be disturbed in any way. In such circumstances the revision appears not maintainable. 4. In the result, the instant revision is dis-allowed.” 11. In such circumstances the revision appears not maintainable. 4. In the result, the instant revision is dis-allowed.” 11. I am of the considered opinion that once the revsional court had found the entire proceeding to be vitiated it ought to have allowed the revision application instead of dismissing the same. 12. For the reasons recorded, hereinabove, I allow this application and set aside the impugned order dated 11th August, 2011 passed in Cr. Revision No.64/9 of 2011/2011 and the order dated 24.12.2010 passed in Case No. 339M of 2001.