Gauhati High Court
Satish Deka vs The State Of Assam And Anr on 19 July, 2022
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GAHC010155172020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./218/2020
SATISH DEKA
S/O- LATE BIPIN DEKA, R/O- VILL.- ATHGAON, P.O. HENGULI, P.S.
KAMALPUR, DIST.- KAMRUP(R), ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:NAYAN MONI KALITA
S/O SRI KIRAN KALITA
R/O ATHGAON (BAHBORI CHUBA)
P.S.-KAMALPUR
DIST-KAMRUP (ASSAM
By Advocates:
For the Petitioner : B. Phukan.
For the respondents : Mr. N. K. Murrey. (Resp. No.2)
Mr. P. Borthakur, Addl. P.P. Assam.
(Resp. No.1)
:::BEFORE:::
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of hearing : 09.06.2022
Date of Verdict : 19.07.2022
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VERDICT (CAV)
Heard Mr. B. Phukan, learned counsel for the petitioner. Also heard Mr. N.
K. Murry, learned counsel for the respondent No.2 and Mr. P. Borthakur, learned
Additional P.P. for the State respondent No.1.
2. This criminal revision petition is directed against the order dated
25.08.2020, passed by the learned Executive Magistrate, Rangia, Kamrup
(Rural) Assam, in connection with Case No. 47/2020, under Sections 145/146(1)
of the Cr.P.C. 1973. It is to be mentioned here that vide impugned order the
learned Executive Magistrate had drawn up a proceeding under section 145(1)
Cr.P.C. and also attached the disputed land as per provision of section 146(1)
Cr.P.C.
3. The factual background leading to filing of the present petition is briefly
stated as under:-
"On 29.07.2020, Shri Nayan Moni Kalita - the respondent No.2 lodged one
F.I.R with the Officer-Incharge Kamalpur P.S. to the effect that he is the
owner as well as the possession holder of a plot of land, measuring 4
Kathas and 15 Lechas, situated at Athgaon, bearing Kheraj Myadi Patta No.
108, Dag No. 1779 of Puwanar Mauza. On 29.07.2020, at about 9.00 AM,
one Satish Deka (petitioner herein) of Kusumpur village, under Kamapur
P.S., committed criminal trespass into the said plot of land and forcefully
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constructed one Tin house and when he raised objection then Satish Deka
chased and assaulted him with a 'dao' and also threatened to kill him. On
receipt of the F.I.R. the Officer-In-Charge, Kamalpur P.S. has endorsed ASI
Dhireshwar Kalita to conduct preliminary investigation. The ASI, after
preliminary investigation, had filed one Non-F.I.R Case No. 14/Pt-I/2020,
under Sections 107/145 Cr.P.C., dated 04.08.2020. Upon receipt of the said
report on 25.08.2020, the Executive Magistrate, Rangia, apprehending
serious breach of peace between the parties over the possession of
disputed land, drawn up the proceeding under Section 145 Cr.P.C., directing
both the parties, to appear before him along with the relevant documents
in support of their respective claims and also considering the petition filed
by the 1st party, Shri Nayan Moni Kalita on 24.08.2020, supported by an
affidavit and also hearing the counsels and having been satisfied that both
the parties are trying to occupy the same plot of land and also considering
the emergent situation, had attached the disputed land under Section
146(1) Cr.P.C., preventing both the parties to get access into the disputed
land till disposal of the case."
4. Feeling dissatisfied and aggrieved with the impugned order, the petitioner,
Shri Satish Deka approached this Court under Section 397/401 of the Cr.P.C.,
challenging the legality, propriety and correctness of the order dated
25.08.2020, passed by the learned Executive Magistrate, Rangia, in connection
with Case No. 47/2020, under Sections 145/146(1) of the Cr.P.C., on the
grounds that:-
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(a) That, the learned Executive Magistrate has committed
manifest error in drawing up the proceeding and that the order is
bad in law and that without going through the materials on record in
its proper perspective when drawn up the proceeding under Section
145 of Cr.P.C.,
(b) That, the dispute between parties is merely a civil dispute
concerning right, title and interest over the disputed land;
(c) That, there was nothing before the learned Court below to
suggest that there was serious breach of peace and public tranquility
caused by the petitioner.
(d) That, the petition filed by the respondent No.2 before the
learned Executive Magistrate, in connection with the Case
No.47/2020, praying for attachment order in regard to the disputed
land under Section 146(1) Cr.P.C., is not supported by any title deed
or documents to show that mother of the respondent No.2 is the
title holder of the disputed land.
(e) That, the police report is not supported by any independent
witnesses so as to suggest serious breach of peace and public
tranquility, to attach the disputed land and therefore, it is contended
to set aside the impugned order.
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5. Mr. B. Phukan, learned counsel for the petitioner submits that the learned
Executive Magistrate has committed manifest error in drawing up the
proceeding under Section 145 Cr.P.C., and also by passing the attachment order
under Section 146(1) of the Cr.P.C.
5.1 Mr. B. Phukan also submits that the dispute between the parties are in
respect of a plot of land and it is of civil nature and to assume jurisdiction by
the Magistrate he must be satisfied that the dispute may likely to cause a
"breach of peace". It is not a breach of mental peace of the parties but
apprehended breach of peace in the locality.
5.2 In support of his submission, Mr. Phukan has referred a decision of co-
ordinate Bench of this Court in Maqbul Hussain vs. Syadur Rahman,
reported in 1986 (2 GLR 167). It is to be mentioned here that in the said
case, a co-ordinate Bench of this Court had held that section 145 of the Code
clearly states that to assume jurisdiction, the Magistrate must be satisfied that
the dispute is likely to cause a breach of peace. It is not a breach of mental
peace of the parties, but apprehended breach of peace in the locality.
5.3 Further, Mr. Phukan submits that no petition under Section 145 Cr.P.C., is
filed here in this case and the learned Executive Magistrate has drawn up the
proceeding only on the basis of Ezahar filed by the respondent. And as such,
the proceeding under Section 145 Cr.P.C., in not maintainable and therefore, it is
contended to set aside the impugned order.
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6. On the other hand, Mr. N. K. Murry, learned counsel for the respondent
submits that the petition is not maintainable and the learned Executive
Magistrate had passed a reasoned order, considering the emergent nature of the
situation, which is likely to cause breach of peace.
6.1 Mr. Murry, further submits that the order of the learned Executive
Magistrate had already been executed and the petitioner has not challenged the
attachment order here in this case, and as such, the petition is not maintainable
and therefore, he contended to dismiss the petition.
7. Having heard the submissions of learned Advocates of both the sides, I
have carefully gone through the petition and the documents placed on record
and also the relevant provision of law. Also I have carefully gone through the
case law referred by Mr. Phukan, learned counsel for the petitioner.
8. It appears from the petition as well as from the submission of learned
counsel for the petitioner that the petitioner has not challenged the attachment
part of the order here in this petition. He has challenged only drawing up of the
proceeding under Section 145 of the Cr.P.C.
9. It is to be noted here that Section 145 Cr.P.C., provides for procedure
where dispute concerning land or water is likely to cause breach of peace. Sub-
section (1) of Section 145 Cr.P.C., provides that whenever an Executive
Magistrate is satisfied from a report of a police officer or upon other information
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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. Sub-
section (2) of Section 145 Cr.P.C., provides that 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.
10. Thus, it becomes apparent that an order under Section 145(1) Cr.P.C. can
be passed when there is a dispute between private parties, and when the
Magistrate is satisfied that the private dispute may lead to disturbance of peace
and public tranquility, in the locality concerned. The Magistrate's satisfaction as
regards likelihood of disturbance of peace should be based either upon the
police report or from information gathered otherwise including the application
by the disputant parties.
11. While dealing with the object of section 145 and 146 of the Code Hon'ble
Supreme Court in Ashok Kumar vs. State Of Uttarakhand & Ors on 13
December,2012 Criminal Appeal No. 2038 of 2012 @ Special Leave Petition
(Crl.) No. 3932 of 2012, held as under:-
"12. Sections 145 and 146 of the Criminal Procedure Code together
constitute a scheme for the resolution of a situation where there is a
likelihood of a breach of the peace and Section 146 cannot be
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separated from Section 145, Cr. P.C. It can only be read in the context
of Section 145, Cr.P.C. If after the enquiry under Section 145 of the
Code, the Magistrate is of the opinion that none of the parties was in
actual possession of the subject of dispute at the time of the order
passed under Section 145(1) or is unable to decide which of the
parties was in such possession, he may attach the subject of dispute,
until a competent court has determined the right of the parties thereto
with regard to the person entitled to possession thereof.
13. The ingredients necessary for passing an order under Section
145 (1) of the Code would not automatically attract for the
attachment of the property. Under Section 146, a Magistrate has to
satisfy himself as to whether emergency exists before he passes an
order of attachment. A case of emergency, as contemplated
under Section 146 of the Code, has to be distinguished from a mere
case of apprehension of breach of the peace. The Magistrate, before
passing an order under Section 146, must explain the circumstances
why he thinks it to be a case of emergency. In other words, to infer a
situation of emergency, there must be a material on record before
Magistrate when the submission of the parties filed, documents
produced or evidence adduced."
12. Thus, it appears that the main object of the section is:-
(a) To prevent the breach of peace over land and water;
(b) To restore the possession of the same to the party found to
have been forcibly or wrongfully dispossessed;
13. In this context, I deemed it appropriate to re-produce below the impugned
order, so passed by the learned Executive Magistrate, so as to understand the
dispute properly:-
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ORDER
Dated- 25/08/2020 Received the case record on transfer. Seen the petition of the 1st party along with the police report. There is serious apprehension of breach of peace between the parties over the possession of the D/L. Hence, a proceeding U/S 145 Cr.P.C. can be drawn up directing both the parties to appear before the Court on the date along with the relevant documents in support of their respective claims. Serve notice to both the parties.
Further, also seen the petition of the 1st party dated 24/08/2020 supported by an affidavit, Heard the 1 st party along with the learned advocate. It is seen that both the parties are trying to occupy the same plot of D/L. Emergent situation can take place between the parties over the D/L. Hence, the Court is satisfied to attach the D/L U/S 146(1), preventing both the parties to get access into the D/L till disposal of the case. The attachment order is given only to prevent any untoward incidents between the parties. The O/C of the concern PS is hereby directed to execute the order & report compliance. Inform all the concerned.
Date fixed- 18/09/2020.
14. A cursory perusal of the aforesaid order, reveals that while drawing up the proceeding under section 145 of the Cr.P.C., the learned Executive Magistrate had relied upon the police report along with the petition filed by the 1 st party, supported by an affidavit and found existence of serious apprehension of breach Page No.# 10/11 of peace in respect of the possession of the disputed land and therefore, drawn up the proceeding under Section 145 of the Cr.P.C., directing the parties to appear before him on the date fixed, along with the relevant documents, in support of their respective claim. The learned Executive Magistrate, also considering the petition dated 24.08.2020, filed by the 1 st party, which is also supported by an affidavit, found that emergent situation can takes place between the parties as he found both the parties were trying to occupy the said disputed plot of land and in order to prevent untoward incidents between the parties, attached the disputed land.
15. It is however a fact that the dispute is a civil dispute concerning right, title and interest over the disputed land. But, section 145 of the Code concerned with the restoration of possession and prevention of breach of peace and tranquility. And it appears that the learned court below has passed the impugned order keeping in mind the objectives of the sections mentioned herein above.
16. Thus, having tested the impugned order on the touchstone of the objectives of section 145/146 Cr.P.C., as discussed in the case of Ashok Kumar (supra), I find that the learned Executive Magistrate had drawn up the proceeding under Section 145 of the Cr.P.C., strictly in accordance with law and having been satisfied on the police report, as well as the petition filed by the 1 st party. And as such, the impugned order seems to be not suffered from any infirmity or illegality, requiring any interference of this Court.
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17. I have given my anxious consideration to the submissions advanced by learned counsel for the petitioner. But, in view of the discussion and findings, recorded herein above, the same left this Court unimpressed, and also, I find that the ratio laid down in the case of Maqbul Hussain (supra), referred by him, would not come into his aid.
18. In the result, I find no merit in this criminal revision petition and accordingly, the same stands dismissed.
19. Stay, if any granted earlier, stands vacated. The parties have to bear their own costs.
JUDGE Comparing Assistant