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2021 DIGILAW 357 (JHR)

Umesh Yadav s/o late Sarjug Yadav v. State of Jharkhand

2021-04-06

SHREE CHANDRASHEKHAR

body2021
ORDER : Shree Chandrashekhar, J. The petitioners are aggrieved of the order dated 02.09.2016 passed in Criminal Revision No.88 of 2015. 2. The petitioners were the opposite parties in the proceedings under section 144 of the Code of Criminal Procedure (in short, CrPC) which was registered as Case No.102 of 2015. 3. By an order dated 13.05.2015 the learned Sub-Divisional Magistrate, Bagodar-Sariya (Giridih) has held that the stand taken by the opposite parties that the land in dispute belongs to their maternal ancestors has got substance. The learned Magistrate has also held that the documents filed by the opposite parties such as kewala and rent-receipt further substantiate their claim. 4. The petitioner challenged the order dated 13.05.2015 in Criminal Revision No.88 of 2015 which was allowed vide order dated 02.09.2016. 5. The learned revisional Court has held as under : “5. In the instant case both the parties are claiming the land in proceeding and on perusal of impugned order dated 13/05/15, it appears that learned SDM has accepted the claim of second party and rejected the claim of first party. Since dispute between the parties relates to immovable property and to decide factum of possession, it was essential on part of the learned SDM to convert the proceeding u/s 145 CrPC but without converting the proceeding u/s 145 CrPC, learned SDM has passed order and accepted the claim of possession of second party in a proceeding u/s 144 CrPC which is illegal as he exceeded his jurisdiction. Accordingly, I find order dated 13/05/15 passed by learned SDM Bagodar in Case No.102/15 suffers from serious illegality, which cannot sustain in law and the same is hereby set aside. In the result the instant criminal revision is allowed.” 6. Section 144 CrPC gives powers to the Magistrate to issue order in urgent cases of nuisance or apprehended danger. Mr. Ram Lakhan Yadav, the learned counsel for the petitioners submits that the life of an order passed under section 144 CrPC is only for two months except as provided under proviso to sub-section 4 to section 144 and therefore the revisional Court was not right in interfering with the order dated 13.05.2015. 7. Chapter-X of CrPC deals with maintenance of public order and tranquility. Chapter-X is divided under four different sub-heads. 7. Chapter-X of CrPC deals with maintenance of public order and tranquility. Chapter-X is divided under four different sub-heads. Urgent cases of nuisance or apprehended danger are categorized under sub-head 'C' and disputes as to immovable property are dealt with under sub-head 'D'. Section 145 CrPC falls in a category different from the urgent cases of nuisance or apprehended danger – it falls under sub-head 'D'. 8. Section 145 CrPC reads as under: “145. Procedure where dispute concerning land or water is likely to cause breach of peace. (1) 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. (2) For the purposes of this section, the expression" land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (2) For the purposes of this section, the expression" land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, (4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section' shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of. such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.” 9. Section 145 CrPC gives powers to the Magistrate and one of such powers is mentioned under proviso to sub-section 4, which provides that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). 10. It is well-settled that in a case of dispute relating to immovable property without converting the proceeding under section 144 CrPC the Magistrate cannot record a finding of fact which may prejudice the either party and, moreover, the Magistrate cannot go into the issue of title and ownership of an immovable property. 11. 10. It is well-settled that in a case of dispute relating to immovable property without converting the proceeding under section 144 CrPC the Magistrate cannot record a finding of fact which may prejudice the either party and, moreover, the Magistrate cannot go into the issue of title and ownership of an immovable property. 11. The learned revisional Court has rightly observed that since the dispute between the parties relates to immovable property the learned Sub-Divisional Magistrate could not have straightway accepted the claim of the second party. 12. Having examined the materials on record, I find that the impugned order dated 02.09.2016 passed in Criminal Revision No.88 of 2015 does not suffer from any infirmity and, accordingly, Criminal Revision No.1556 of 2016 is dismissed. 13. Let a copy of the order be transmitted to the Court concerned through “Fax”. Revision dismissed.