Gauhati High Court
Swapan Choudhury vs The State Of Assam And Ors on 5 June, 2012
Author: A.C. Upadhyay
Bench: A.C. Upadhyay
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
CRIMINAL PETITION NO.129 OF 2012.
Sri Swapan Choudhury,
Son of K.N. Choudhury,
resident of S. Dohutia Road,
Borpather, P.O. & P.S.
Tinsukia, District - Tinsukia,
Assam.
... PETITIONER
-Versus-
The State of Assam.
Sri Milan Bhattacharjee,
Resident of S. Dohutia Road,
Borpather, P.O. & P.S.
Tinsukia, District- Tinsukia,
Assam.
... OPPOSITE PARTIES
PRESENT
THE HON'BLE MR. JUSTICE A.C. UPADHYAY
For the appellant : Mr. K. Agarwal,
Mrs. P. Neog,
Mr. B.N. Borah, Advocates
For the Opposite Parties : Mr. P.J. Saikia,
Mr. A.K. Gupta, Advocates
Date of hearing : 19.4.2012
Date of Judgment : 5.6.2012
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JUDGMENT AND ORDER
This revision is directed against the judgment and order dated
15.2.2012, passed by the learn Additional Sessions Judge (FTC) No.1,
Tinsukia in Criminal (Revision) Case No.03(1)/12, whereby the order
passed by the learned Executive Magistrate, in Case No.257/2011
drawing up proceeding under Sections 107/145 CrPC, was affirmed.
2. The facts unfolded from the pleadings of the parties may be
briefly stated as follows -
The petitioner was served with a notice by the Tinsukia Police
on 27.12.2011, whereby he came to learn that the learned Executive
Magistrate, Tinsukia by order dated 27.12.2011 passed in Case
No.257/2011, drew up a proceeding under Section 107/145 CrPC
against the petitioner, opposite party No.2. In the said impugned
order DATED 27.12.2011 PASSED IN Case No. 257/2011, the learned
Executive Magistrate directed the parties to maintain statusquo and
not to involve in any activity that may vitiate the peaceful
environment until further orders from the competent authority and
also directed to move the Tinsukia Development Authority, for
addressing their grievance. The petitioner further states that the
aforesaid order was passed without notice to the petitioner/opposite
party No.2.
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3. The petitioner upon enquiry found that the opposite party No.2
had lodged an ejahar on 25.12.2011 with Tinsukia Police Station
stating therein that 18 ft. wide road on the western side of his land
situated at S. Dohutia Road, Town Sheet No.5 was encroached upon
by the petitioner by digging the land. It was further alleged in the FIR
that the petitioner had engaged 5 to 6 persons for digging the said
road to fix pillars. When the first informant had requested the
petitioner, the petitioner started abusing him with filthy language and
also threatened him of dire consequences. On the basis of the
aforesaid FIR, Officer-in-charge of the Police Station enquired into the
matter submitted NON FIR Case No.R/Pt.I/147/2011 dated
26.12.2011. The relevant extract of the report of the Officer-in-charge
of the Police in brief reflects as follows-
"During the time of investigation it was found that the First
Party and the Second Party were close neighbours. There was
a road to the house of the First Party where they are residing
and they were using that road. At the time of purchasing the
land by the First Party, the aforesaid road was there and it was
shown in the map of the Tinsukia Development Authority also.
But the Second Party said that the aforesaid road was not there
and as such engaged labourers to dig the road and construct a
building thereon. On enquiring the local witnesses during the
time of investigation, they said that the aforesaid road was
there and at the time of investigation, the second party was
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found digging the road by engaging labourers. But since the
land became disputed, the second party was asked to stop the
work then and there demarcate the parties even to the extent
of death. Hence prayer is made before the Hon'ble Court to
draw up a proceeding under Section 107 CrPC and issue
summon to both the parties to show cause as to why they
cannot reside peacefully and thereafter order them to execute
bond. Further it is prayed that this Hon'ble Court will direct
seizure of the disputed land under Section 145/146 CrPC.
Further enclosing herewith the application of the first party and
land documents of the disputed land."
4. On the basis of such information, the learned
Executive Magistrate passed the following order -
27.12.2011 : C.R. put up to me on transfer today
27.12.2011. Perused the original petition, police report
along with documents furnished. After careful
examination it has appeared to me that there exist a
dispute between Sri Milan Bhattacharjee, S/O Late
Adinath Bhattacharjee of S. Dahutia Road, Borpathar,
P.S. Tinsukia herein after referred as the 2nd party
regarding a road leading to the residence of 1st party.
The police has reported that the 2nd party is trying to
construct structure in the road. I am satisfied that the
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dispute might lead to breach of peace and public
tranquility and thus proceeding is drawn up U/S
107/145 CrPC.
Issue notice to both the parties to appear in my court
in the next date fixed and to show cause as to why
they should not be asked to furnish bond for keeping
peace until completion of enquiry.
Since the dispute may lead to breach of peace and
public tranquility both the parties are directed to
maintain status quo and not to involve in any activity
that may vitiate the peaceful environment until further
order or orders from higher competent court.
Both the parties are also asked to move Tinsukia
Development Authority for addressing grievance.
Ask O.C. Tinsukia P.S. to furnish schedule of the plot of
land in question before the next date fixed.
Next date fixed 10.1.2012.
5. The main contention of the learned counsel for the
petitioner is that the dispute between the parties is a civil
dispute between two individuals; therefore, there was no
scope at all to entertain and initiate a proceeding under
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Section 145 CrPC, and to pass order and directions to the
parties to maintain statusquo as on date.
6. Learned counsel for the petitioner has pointed out that
by directing the parties to maintain statusquo, the learned
Executive Magistrate has virtually stalled the construction
work, which was going on in the land belonging to the
petitioner. Learned counsel for the petitioner pointed out that
it was a pure and simple civil dispute arising out of personnel
grudge and there cannot be any element of apprehension of
breach of peace in the locality. Learned counsel further
submitted that the learned Executive Magistrate did not
taken into consideration the aforesaid aspect of the matter,
and therefore committed gross illegality in drawing up the
proceeding under Section 145 CrPC and directing to maintain
the statusquo.
7. That being aggrieved by the Order dated 27.12.2011
passed by the learned Executive Magistrate, Tinsukia in Case
No.257/2011 under Section 107 and 145 CrPC, the petitioner
preferred a Revision Petition before the learned Sessions
Judge, Tinsukia on 7.1.2012. The aforesaid case was
registered and numbered as Criminal (Revision) No.03(1) of
2012 and the same was transferred to the file of the learned
Additional Sessions Judge (FTC) No.1, Tinsukia for disposal.
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The petitioner further states that on 7.1.2012, the petitioner
filed two applications along with the aforesaid Criminal
(Revision) No.03(1)/2012, one for the stay of the order
dated 27.12.2011 passed by the learned Executive
Magistrate, Tinsukia in Case No.257/2011 and the other for
admitting the Revision Petition without the copies of the
petition and impugned order of the lower Court.
8. The petitioner states that though 10.1.2012 was fixed
in Case No.257 of 2011 and though the petitioner filed a
petition dated 28.12.2011, the Executive Magistrate did not
pass any order on 10.1.2012. According to the learned
counsel for the petitioner, the FIR was filed on 29.1.2012
(Annexure-6) by the Opposite Party No.2, however, it
transpires from record that the Executive Magistrate, before
sending the records to the Court of the Additional Sessions
Judge (FTC) No.1, Tinsukia had written the order showing it
to have been passed on 10.1.2012.
9. The petitioner states that the learned Additional
Sessions Judge (FTC) No.1, Tinsukia after hearing the parties
in Criminal (Revision) Petition No.03(1)/2012 vide judgment
and order dated 15.2.2012 dismissed the Revision Petition on
the ground that the impugned order dated 27.12.2011 was in
accordance with the provisions of law and as such did not
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suffer from any illegality, impropriety and incorrectness
requiring interference.
10. Learned counsel for the petitioner submitted that
Executive Magistrate, ought to have considered that the
materials collected by the police clearly show that, even if
there was any dispute between the parties than the same
was purely Civil in nature and nothing to do with public
breach of peace. The learned Executive Magistrate, having
failed to take into consideration this important aspect of the
matter, committed gross error of law in drawing up the
proceeding under Section 145 CrPC and directing the parties
to maintain status quo and to approach the Tinsukia
Development Authority, for redressal of their grievances. In
view of above, the entire proceeding of Case No.257/2011
including the impugned order dated 27.12.2011 and other
orders passed therein are liable to be set aside and quashed.
11. Learned counsel for the petitioner pointed out that
there being no existence of apprehension of public breach of
peace, the learned Executive Magistrate did not have the
power and jurisdiction to draw up a proceeding under Section
145 CrPC and to direct maintenance of status quo and direct
the parties to approach the Tinsukia Development Authority
for redressal of their grievance.
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12. Referring to the findings of the learned Additional
Sessions Judge (FTC) No.1, learned counsel contended that is
not based on materials on record, inasmuch as, the learned
Additional Sessions Judge (FTC) No.1, recorded that the
police in its report had submitted that there exist
apprehension of breach of public peace, whereas the police
report dated 26.12.2011 states about apprehension of breach
of peace between the parties. The impugned judgment and
order dated 15.2.2012 having being based on such illegal
and perverse finding, cannot be sustained either on facts or
law and as such the impugned judgment and order dated
15.2.2012 is liable to be set aside and quashed on that
ground alone.
13. Mr. K. Agarwal, learned counsel appearing for the
petitioner submitted that the question of jurisdiction goes to
the root of the matter and in the instant case, on the
materials on record, the learned Executive Magistrate did not
have the power and jurisdiction to draw up a proceeding
under Section 145 CrPC and pass the impugned order dated
27.12.2011 and therefore, the impugned order is illegal in
the eyes of law. According to the petitioner, the learned
Additional Sessions Judge (FTC) No.1 failed to take into
consideration the aforesaid aspect of the matter warranting
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interference to prevent the abuse of process of the court of
law and to secure the ends of justice in exercise of the
Hon'ble Court's power and jurisdiction under Section 482
CrPC.
14. Learned counsel for the petitioner by referring to the
decision of a single Bench of this Court in Maqbul Hussain
Vs. Syadur Rahman (1986) 2 GLR 167 submitted that the
dispute between the parties is a civil dispute, therefore
exercise of jurisdiction by the Executive Magistrate, under
Section 145 CrPC is illegal warranting interference by this
Court. The relevant extract of the above decision in Maqbul
Hussain(Supra) reads as follows -
"1. It is difficult to obtain an order of injunction in a
civil suit because the party is bound to satisfy the court
that there is a prima facie case, the balance of
convenience tilts in his favour and also to satisfy the
court that if injunction is refused the applicant shall
suffer irreparable injury. So many hurdles are to be
crossed before obtaining an order of injunction. An
order of injunction or prohibitory order takes away
certain rights of the party injuncted. It is indeed
difficult to obtain an injunction, but just throw a
petition and assert that there is apprehension of breach
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of peace in respect of the possession of an immovable
property, claim for drawing up a proceeding assenting
right to posses the property, a proceeding is readily
drawn up under Section 145 CrPC. The proceeding is
initiated no matter whether it is a private dispute
between the parties or it is a dispute which
necessitates drawal of the proceeding for the
maintenance of public order and tranquility.
2. The distinction between the concept of public order,
law and order or public tranquility is to be found in the
picturesque description drawn by Hidayatullah, J, in
Ram Manohar Lohia Vs. State of Bihar, AIR 1966 SC
740. The distinction between the security of State,
public order and law and order, i.e. public tranquility,
has been defined by drawing three concentric circles.
„Public Order‟ comprehends disorder of less gravity
than those affecting „public order‟. One, is to close his
eyes and take three concentric circles. Law and order
represents the largest circle within which is the next
circle representing public order and the smallest circle
represents security of State. It is then easy to visualize
that an act may affect law and order or public
tranquility but not public order just as an act may
affect public order but not security of the State. Public
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order means the even tempo of life of the community
even in a specified locality. Disturbance of public order
is to be distinguished from acts directed against
individuals which do not disturb the society to the
extent of vibrating a general disturbance of public
tranquility. If a party illegally and forcibly occupies the
land of another, people may be shocked and even
mentally disturbed but the life of the community may
keep on moving keeping peace with the even tempo of
life of the community is disturbed or jeopardized, it
may be a case of disturbance of public order and
tranquility. The acts of private parties with affect
personal rights and obligations only but do not disturb
the even tempo of the society are merely private feuds
for which action may not be necessary to be taken
under Chapter X of the Code of Criminal Procedure.
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. Ordinarily, a person
dispossessed of property must sue for recovery of
specific immovable property under Section 5 and 6 of
the Specific Relief Act and if there is threat to
dispossess him he should institute a suit to obtain
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injunction. These are forum for establishing the right of
the litigants. A proceeding under Section 145 CrPC is,
therefore, an extraordinary provision to grant extra-
ordinary relief when there is likelihood of breach of
peace in the locality. The final order of magistrate is
subject to the decision of the civil court. It is,
therefore, seen that private dispute between two
persons which does not disturb law and order or
occasion a breach of the peace in the locality the forum
for getting relief is the civil court of competent
jurisdiction. Now, what I find all around is that just on
some pretext or pretence flood of proceedings under
Section 145 CrPC are entering in courts like flood water
entailing wastage of public money and public time.
Before taking up a proceeding under Section 145 of the
Code the Magistrate must be careful cautious,
circumspect and slow. The quint-essence of the
decision of the Supreme Court in Ram Sumer Puri
Mahani Vs. State of U.P. AIR 1985 472 is to discourage
proceedings under Section 145 of the Code as far as
possible. It is necessary to avoid multiplicity of
litigation which is against the interest of the parties and
in most of the cases public time is wasted over
meaningless and unnecessary proceedings. In Ram
Sumer(Supra) a note of warning has been sounded by
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the Supreme Court that the Magistrate should initiate
proceedings under Section 145 of the Code when the
essential elements of the section are found to be
present in the case. However, these are my passing
observations."
15. By referring to the decision of the Apex Court in (i) Rajan
Kumar Machananda Vs. State of Karnataka, 1990 (Supp) SCC
132 and (ii) Dharampal and Ors. Vs. Ramshri (Smt.) and Ors.
(1993) 1 SCC 435, Mr.P.J. Saikia ,learned counsel for the
respondent vehemently submitted that the second revision
petition is not maintainable under Code of Criminal Procedure,1973. In the afore noted decisions it was held that the second revision petition, after dismissal of the first one by the Sessions Court, cannot be entertained by the High Court in exercise of its inherent power under Section 482 of Crpc. The Apex Court in Rajan Kumar Machananda case(supra) held that where a revision petition is dismissed by the Sessions Court, a second revision would not lie to the High Court and the statutory bar cannot be overcome by the High Court. If that was to be allowed each revision application not permitted under Section 397(3) of the Code could be considered as one under Section
482. The Apex Court in Dharampal case (supra) held that it is 15 now well settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code.
16. In reply to the above submission, Mr. K. Agarwala, learned counsel appearing for the petitioner pointed out that the ratio laid down in Rajan Kumar Machananda case (supra) and Dharampal case (supra) has been overruled by a larger Bench of the Apex Court (three Judges) in Krishnan and Anr. Vs. Krishnaveni and Anr. , (1997) 4 SCC 241 and , later on the Apex Court , followed it in Shakuntala Devi and Ors. Vs. Chamru Mahto and Anr. (2009) 3 SCC 310. From the ratio laid down by the Apex Court in the above cases, it clear that second revision petition by the same petitioner is barred by Section 397 (3) of CrPc, but the same petitioner is not barred from approaching the High Court for correcting the palpable errors committed by the Court below. Though second revision before the High Court under sub section (1) of Section 397 is prohibited by sub section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code of Criminal Procedure and as it is paramount power of continuous superintendence of the High 16 Court .Therefore, the High Court would be justified in interfering with the order leading to miscarriage of justice and in setting aside such orders of the Courts below.
17. The purpose of the introduction of Section 397 (3) of Criminal Procedure Code is to avert a second revision so as to avoid frivolous litigation, but, at the same time, the right of a litigant, who had lost before the Sessions Judge, are not completely closed and in exceptional cases the restriction under Section 397 (3) can be taken away. The object of Section 482 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to put in constant control over the authority, so as to prevent miscarriage of justice or to correct anomaly of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously, when the Sessions Judge has simultaneously exercised revisional power under Section 397 (1 ). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the 17 High Court to prevent the abuse of process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court, in its juridical process or illegality of sentence or order. [See Krishnan case (supra)].
18. In Madhu Limaye Vs. State of Maharashtra: (1977) 4 SCC 551 : 1978 SCC (Cri) 10, a three-Judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397 (2) of the Code. The Apex Court held that the bar on the power of revision was put in order to facilitate expedient disposal of the cases, but in Section 482 it is provided that nothing in the Code, which would include Section 397 (2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction of the said two provisions in this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. On a preliminary objection raised on the maintainability, the Apex Court held that power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code.
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19. In view of the above discussion, keeping in view the ratio laid down by the Apex Court in Krishnan case (supra) and Shakuntala Devi's case (supra), I find that inherent power of the High Court can be exercised to prevent the failure of justice or prevent misuse of power or to correct irregularities committed by inferior criminal courts. However, when Sessions Judge had already exercised the jurisdiction, the High Court would sparingly and cautiously must exercise powers of revision under Section 482 CrPC. In the light of the above discussion, it would be appropriate for this Court to see, as to whether there are substantial slips and errors, in the orders passed by the learned Court below. Whether the orders have been passed by the learned Courts below in breach of the recommended procedure and manner,. Whether the learned Courts below, while drawing up the preliminary proceeding under Section 145 of Crpc and in passing the impugned order failed to decide as to whether the dispute is a civil dispute in between the parties .
20. There is no denial of the fact that the learned court below while drawing up a proceeding took into consideration the provision of as laid down under section 145 CrP C . 19
Section 145 of CrPC reads as follows:
"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.
21. On careful consideration of the materials on record it is seen that challenge to the question of jurisdiction goes to the root of the matter and in the instant case, I find that the learned Courts below failed to consider and examine all relevant aspects and fundamental requirements of the provision of Section 145 Cr.P.C ,before deriving satisfaction, regarding existence of dispute likely to cause a breach of the peace in the locality concerning any land or water or boundaries thereof. Therefore, the impugned order warrants interference by this Court.
22. Accordingly, the impugned orders are hereby set aside. The Case No. 257 of 2011, pending before the learned Executive Magistrate, Tinsukia is 20 remanded, for taking up the matter afresh in accordance with law. However, the learned Executive Magistrate on receipt of the copy of this order shall issue notice to both the parties and after hearing both the Parties to the proceeding, pass appropriate order in accordance with law.
23. With the above direction and order this revision petition is disposed of. Send a copy of this order to the learned court below.
JUDGE TDR 21 22