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2020 DIGILAW 597 (ALL)

Nathoo Das v. State of U. P.

2020-02-25

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This petition, under Article 227 of the Constitution of India, has been filed by the petitioner, Nathoo Das, with a prayer for setting aside impugned order of the court of Sub Divisional Magistrate, Nichlaul, Maharajganj, dated 30.7.2018, passed in a proceeding, under Section 145 of Code of Criminal Procedure (Hereinafter, in short, referred to as Cr.P.C.) as well as, order, dated 09.01.2018 of learned Sessions Judge, Maharajganj, passed in Criminal Revision No.43 of 2019. 2. Learned counsel for the petitioner argued that the impugned order by the Sub Divisional Magistrate, Nichlaul, District Maharajganj, was passed over an application, moved by Mutur Das, dropping proceeding, under Section 145 of Cr.P.C., whereas, there is every likelihood of breach of peace, but, proceeding, under Section 145 of Cr.P.C., has been dropped. 3. This order of Sub Divisional Magistrate, Nichlaul, Maharajganj, was challenged in a Criminal Revision before the Sessions Judge, Maharajganj, as Criminal Revision No.43 of 2019, and it was rejected vide order, dated 9.1.2020. 4. Both of the courts below have failed to appreciate facts and law placed before them. It was failure of observance of settled position of law. Hence, for invoking power of general superintendence, conferred upon the High Court, by Article 227 of the Constitution of India, over its subordinate court, this petition has been preferred by the petitioner, with above prayer. 5. Learned counsel for other side has vehemently opposed this petition with this contention that this proceeding was pending since 2004 and there was a judgment of revenue court, in a suit, filed by the applicant, for ownership and possession over disputed land and after its decision nothing remained there for likelihood of breach of peace. Hence this proceeding was dismissed by the learned Magistrate. Impugned order was challenged before the revisional court, where too, it was dismissed. 6. Hence this proceeding was dismissed by the learned Magistrate. Impugned order was challenged before the revisional court, where too, it was dismissed. 6. Section 145 of Cr.P.C. provides procedure where dispute concerning land or water is likely to cause breach of peace, which says 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 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". 7. Meaning thereby, the Executive Magistrate is to satisfy about existence of any likelihood of breach of peace. This satisfaction may be either on the report of the Police Station, concerned, or by otherwise, but, the condition precedent for exercising power, under this power, conferred by Section 145 of Cr.P.C., is the satisfaction of the Executive Magistrate, regarding existence of any likelihood of breach of peace and this was reported by the Station Officer of the Police Station, concerned, that there remained some dispute over agricultural land, detailed in the report, in between Mutur Ddas and Nathoo Das, wheresas, land is recorded in the revenue record, in the name of Mutur Das and one other persons, who are in possession over the land in question. They have sown the crop and had harvested the same, but, Nathoo Das, applicant herein, had filed a case, regarding ownership, in the revenue court as well as in Civil court and he claimed possession over it, thereby, creating a likelihood of breach of peace. Upon this report, proceeding, under Section 145 of Cr.P.C., was initiated, wherein, opportunity to both sides was afforded and this proceeding was pending since 2004, and ultimately, the Magistrate opined that there is no likelihood of breach of peace, hence, proceeding was dropped. 8. Upon this report, proceeding, under Section 145 of Cr.P.C., was initiated, wherein, opportunity to both sides was afforded and this proceeding was pending since 2004, and ultimately, the Magistrate opined that there is no likelihood of breach of peace, hence, proceeding was dropped. 8. A criminal revision, against this order, was filed, wherein, revisional court has directed for proceeding, in above proceeding, thenafter, proceeding was initiated, but, an application by Mutur Das was filed mentioning therein that the judgment of revenue court, in pending suit, is there and there is no likelihood of breach of peace. On the basis of it, Magistrate, passed impugned order, whereby, proceeding, under Section 145 of Cr.P.C., was dropped. 9. This order was challenged before the court of Sessions, i.e., revisional court, wherein, learned revisional Judge opined that even in Police report, it was specifically mentioned that Mutur Das and Shiv Mangal were entered in the revenue record as owners of the agricultural land, in question, and they have sown the crop and had harvested it. Meaning thereby, there is no likelihood of breach of peace, regarding possession over the immovable property at that point of time. It was Nathoo Das, applicant herein, who was claiming his right over the agricultural land in question and for which, he had filed suit in revenue court as well as in civil court, wherein, judgment of revenue court was passed. 10. As per law laid down by the Apex Court, in the case of Amresh Tiwari vs. Lalta Prasad Dubey and others, reported in 2000 (2) J.I.C. 44 (SC), if a civil suit is pending or proceeding for determination of right and possession, in between the parties, has been instituted and is pending, then, proceeding, under Section 145 of Cr.P.C., is not to be taken course. 11. In present case, since beginning, there was no likelihood of breach of peace or a dispute, regarding possession, because agricultural land, in question, was reported to be recorded in the name of Mutur Das and Shiv Mangal, who are in possession and since 2004 till 2018, there occurred no breach of peace at any point of time, rather, case in revenue court was decided by the court, concerned. Hence, both of the courts below have rightly and appropriately appreciated facts and law placed before them. Hence, both of the courts below have rightly and appropriately appreciated facts and law placed before them. There is no failure of justice, requiring any indulgence of this Court, in exercise of power of general superintendence by the High Court over its subordinate courts, conferred by Article 227 of the Constitution of India. 12. Accordingly, in view of what has been discussed above, this petition, under Article 227 of Constitution of India, being devoid of merits, fails and is dismissed.