Patna High Court - Orders
Dasrath Prasad Singh & Anr vs State Of Bihar & Anr on 20 September, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.28125 of 2009
1. Dasrath Prasad Singh @ Dasrath Prasad, S/o Late Ram Prasad
2. Sujeet Kumar Singh, S/o Suresh Singh @ Suresh Prasad Singh
Both residents of village-Babhan Bigha, Police Station-Barbigha,
District-Sheikhpura ......... Petitioners.
Versus
1. The State Of Bihar
2. Sunil Prasad Singh, S/o Rajeshwar Prasad Singh, resident of
village-Rampur Sindava, P.S. Barbigha, District-Sheikhpura
......... Opposite Parties.
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For the petitioners: Mr. Pushkar Narain Shahi, and Partha Sarthy For the State: Mrs. Reena Sinha, A.P.P. For the Opposite Party No. 2 : Mr. Akhileshwar Prasad Singh, Senior Advocate.
5 .....-09-2011 Heard the parties.
This application under Section-482 of the Cr.P.C. has been filed on behalf of the petitioners who are IInd Party in Case No. 678 of 2008 initiated under Section-144 of the Cr.P.C., for quashing the order dated 14.02.2009 passed by District Magistrate, Sheikhpura in aforesaid Case No. 678 of 2008 whereby and whereunder, he converted the aforesaid proceeding of Section-144 of the Cr.P.C. into a proceeding under Section 145 of the Cr.P.C.
The brief facts giving rise to file this Quashing Petition is that Opposite Party No. 2, namely, Sunil Prasad Singh filed a petition before the District Magistrate, Sheikhpura on 13.12.2008 stating therein that he was the holder of licence No. 1/11-2009 for holding a Cattle Hat on Friday. The aforesaid licence had been issued in his favour by Nagar Panchayat, Barbigha but he got knowledge from 2 newspapers that a new Cattle Hat has been started on Friday itself by petitioners which is north of the boundary of the Nagar Panchayat, Barbigha and on query, he came to know that petitioners got licence for holding the aforesaid Cattle Hat by the Panchayat whereas there was no provision of issuance of licence under the Bihar Panchayat Raj Act. He further stated in his petition that on earlier occasion, petitioner No. 1 had been holding Cattle Hat without licence which was declared illegal by the Nagar Panchayat and on account of the action of the petitioners; it may result into breach of peace.
On the basis of aforesaid petition, a report from the concerned police station was called for and subsequently, Officer-in-charge of Barbigha police station submitted a report on 25.12.2008 before S.D.M. Sheikhpura stating therein that there was mention of breach of peace between petitioners and Opposite Party No. 2 and accordingly, the Officer-in-charge, Barbigha Police Station recommended for initiation of a proceeding for prevention of breach of peace.
On the basis of aforesaid report, the learned S.D.M. Sheikhpura initiated a proceeding under Section-144 of the Cr.P.C. against the parties in respect of several Kheseras of village-Babhan Bigha, Police Station-Barbigha, District-Sheikhpura and directed the parties to file their show causes. Subsequently, petitioners filed their show cause 3 before learned S.D.M. Sheikhpura which is Annexure-4 to this petition. The learned S.D.M. Sheikhpura, having considered the show causes of the parties, passed the impugned order in the manner as stated above.
I have heard the parties on the point of admission and in my view, this petition can be disposed of at the admission stage itself.
Learned counsel appearing for petitioners assailed the impugned order on the ground that petitioners had been granted licence for holding Cattle Hat at Khata No. 478 Khesera No. 135 area 33 decimals, Khata No. 647 Khesera No. 83 area 23 decimals, Khata No. 647 Khesera No. 37 area 36 decimals, Khata No. 786 Khesera No. 98 area 14 decimals, Khata No. 786 Khesera No. 101 area 54 decimals, Khata No. 628 Khesera No. 85 area 9 decimals, Khata No. 603 Khesera No. 84 area 2 decimals and Khata No. 473 Khesera No. 81 area 37 decimals situate at village- Babhan Bigha under the jurisdiction of Barbigha Police Station, District-Sheikhpura but the Opposite Party No. 2 was granted licence for holding Cattle Hat at different plots at village-Rampur Sindai. The distance between Babhan Bigha and Rampur Sindai is about 5 kms and therefore, the learned S.D.M. Sheikhpura had got no jurisdiction to initiate a proceeding under Section 145 of the Cr.P.C. because there was no dispute regarding the actual possession of the land and the question of breach of peace in respect of 4 possession of any land does not arise. It is further contended by him that continuance of the proceeding, in question, is nothing but only an abuse of process of the law.
Learned counsel appearing for Opposite Party No. 2 submitted that the satisfaction of Magistrate is sufficient to initiate a proceeding under Section 145 of the Cr.P.C. and this court has got no jurisdiction to see as to whether there was any sufficient material to initiate a proceeding under Section 145 of the Cr.P.C. or not.
In support of his contention, he referred a decision reported in AIR 1968 1444 wherein the Hon'ble Supreme Court, at Paragraph-9 has held as follows:
"The satisfaction under sub-s. (1) of S. 145 is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is therefore, in his discretion which, no doubt has to be exercised in accordance with the well recognized rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction."
It is further contended by him that for conversion of the proceeding under Section-144 of the Cr.P.C. into a proceeding under Section 145 of the Cr.P.C., there is no need to assign reasons for satisfaction and if Magistrate comes to the conclusion that the question involved in a proceeding under Section-144 of the Cr.P.C. cannot be 5 decided in the above-said limited proceeding, he may convert the aforesaid proceeding under Section 145 of the Cr.P.C. and the learned court below has rightly converted a proceeding under Section-144 of the Cr.P.C. into a proceeding under Section 145 of the Cr.P.C. It is contended, further, by him that if petitioners are aggrieved by the impugned order of conversion, they may raise the aforesaid issue before the learned court below itself under the provision of Section 145 (5) of the Cr.P.C.
He cited another decision reported in 1975 BBCJ 856 in which it has been held by this court that for conversion of the proceeding under Section-144 of the Cr.P.C. into a proceeding under Section 145 of the Cr.P.C., there is no need to mention any reason or satisfaction in the order.
It is further contended by him that if a proceeding under Section-144 of the Cr.P.C. is converted into a proceeding under Section 145 of the Cr.P.C., the initiation of a proceeding under Section 145 of the Cr.P.C. is an independent proceeding and it does not amount to an order passed in a proceeding under Section-144 of the Cr.P.C.
Learned counsel appearing for Opposite Party No. 2 in support of the above-said submission placed reliance upon a decision reported in 1978 BBCJ 134 in which the court has held that conversion of a proceeding under Section 145 of the Cr.P.C. amounts to initiation of a 6 proceeding and it does not amount to an order passed in a proceeding under Section-144 of the Cr.P.C.
It is further contended by him that admittedly, the licence of Cattle Hat was granted to the Opposite Party No. 2 and he started holding Cattle Hat on the basis of aforesaid licence but petitioners created hurdle by starting new Cattle Hat without having any valid licence and the aforesaid act of the petitioners, certainly created tension between the parties and there was every possibility of breach of peace in between the parties and, therefore, this court should not interfere with the impugned order under the power vested under Section-482 of the Cr.P.C.
Certain facts are admitted. It is an admitted position that Opposite Party No. 2 was granted licence for holding Cattle Hat in village-Rampur Sindai whereas petitioners started holding Cattle Hat in village Samas Khurd (Babhan Bigha) and it has been admitted by the learned court below itself in impugned order that the distance between the aforesaid two Hats is about 2 kms. So, it is apparent from the aforesaid fact that the above-said two Hats are being held on two different plots.
Section 145 of the Cr.P.C. runs as follows:
Procedure where dispute concerning land or water is likely to cause breach of peace ----
(i) Whenever Executive Magistrate is satisfied from a report of police officer or upon other 7 information that the dispute is likely to cause a breach of peace exist concerning any land or water or 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 receipts of the fact of actual possession of the subject of the dispute.
(ii) xxxxxx
(iii) xxxxx
(iv) xxxxxx
(v) 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 exist or has existed, and in such case, the Magistrate shall cancel his stay order, and all further proceedings thereof shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(vi) xxxxx
(vii) xxxxx
(viii) xxxxx
(ix) xxxxxx
(x) xxxxxxxx The aforesaid provision shows that an Executive 8 Magistrate may initiate a proceeding under Section 145 of the Cr.P.C. either on the basis of police report or upon other information if he is satisfied that a dispute is likely to cause a breach of peace exist concerning any land or water or the boundaries thereof. It is manifest from the aforesaid provision that the Executive Magistrate gets jurisdiction for initiating a proceeding under Section 145 of the Cr.P.C. if there is dispute in respect of any land or water or boundaries thereof and the aforesaid dispute is likely to cause a breach of peace . The pre-requisite condition for initiating a proceeding under Section 145 of the Cr.P.C. is a dispute of actual possession in respect of land, water or boundaries thereof.
In the present case, admittedly, there is no dispute in respect of actual possession of any land, water or boundaries thereof whereas, in the present case, it is specific case of the parties that they were holding Cattle Hats on different plots and the dispute between the parties is regarding right of holding of Cattle Hat and not in respect of actual possession of any land, water or boundaries thereof. Although section 145(2) Cr.P.C. says that for the purpose of this section, "the expression- land or water includes buildings, markets, fisheries, crops or other produce of land and the loss or profits of any such property but the dispute should be in respect of actual possession of the subject of dispute".
9
It would appear from the impugned order that the learned S.D.M. Sheikhpura having relied upon a decision reported in AIR 1949 Patna 146 assumed the jurisdiction to initiate a proceeding under Section 145 of the Cr.P.C. against the parties and passed the impugned order.
In AIR (36) 1949 Patna 146, it has been held by the court that in a proceeding under Section 145 of the Cr.P.C., the Magistrate is concerned only with the question of actual possession and he must determine that question irrespective of the right to possession. The aforesaid decision is not applicable in the present case because in that case, the dispute was related with one property and not on two different properties and furthermore, the dispute in the aforesaid case was in respect of actual possession and the right of the parties was not in dispute, whereas in the present case, dispute relates to the right of parties and not about the actual possession in respect of the lands.
So far as the decision reported in AIR 1968 SCC 1444 is concerned, no doubt sufficiency of material cannot be inquired by Higher Court and satisfaction of the Magistrate is sufficient to initiate a proceeding under Section- 145 of the Cr.P.C. but the case in hand, the learned Magistrate had got no jurisdiction to initiate a proceeding under Section 145 of the Cr.P.C. because there was no dispute between the parties in respect of actual possession of land, water or boundaries thereof.
10
Similarly, the decision reported in 1975 BBCJ 856 is also not applicable in the present case because in the present case, the learned Magistrate had got no jurisdiction to initiate a proceeding under Section 145 of the Cr.P.C. inasmuch as there was no dispute in respect of land, water or boundaries thereof as stated above. Similar is the fate of decision reported in 1978 BBCJ 134 and the aforesaid decision is also not applicable to the facts of the present case.
In view of the aforesaid discussions, I am of the opinion that the learned S.D.M. Sheikhpura has committed an illegality to initiate (convert) a proceeding under Section 145 of the Cr.P.C. without having jurisdiction to do so, and therefore, this court has got no option but to exercise its power vested under Section-482 of the Cr.P.C.
On the basis of foregoing discussions, this petition is allowed and the impugned order dated 14.02.2009 passed by learned S.D.M. Sheikhpura in Case No. 678 of 2008 is, hereby, quashed.
In the above-said manner, this Quashing Petition is disposed of at the stage of admission itself.
AKV/- ( Hemant Kumar Srivastava,J.)