Gauhati High Court
Kaushal Mishra And Ors. vs Raj Kumar Mishra on 10 October, 2007
Equivalent citations: 2007(4)GLT889
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. This is an application made under Section 482 Cr.P.C. against the order, dated 08.08.2007, passed by the learned Additional Sessions Judge (FTC) No. 1, Sankardev Nagar, Hojai, in Criminal Revision No. 11(N)/2007, dismissing the revision and upholding the order, dated 22.12.2006, passed in MR Case No. 105/2000, by the learned Executive Magistrate, Sankardev Nagar, Hojai, declaring possession of the disputed land in favour of the first party-opposite party herein.
2. Heard Mr. R.L. Yadav, learned Counsel for the petitioner, and Mr. N.K. Baruah, learned Counsel for the opposite party
3. On the basis of a petition filed by the opposite party herein and the police report, an order was passed, on 15.07.2000, by the learned Executive Magistrate, Sankardev Nagar, Hojai, drawing proceeding under Section 144 Cr.P.C. and prohibiting entry of not only the first party, but also of the present petitioner (who had been impleaded as second party) into the disputed land until further order excluding, however, the dwelling house, etc., standing thereon. The police report described the dispute, in question, thus: Both the parties are members of the same family. When the first party made necessary arrangement for construction of a latrine, on the disputed land claiming to be in exclusive possession thereof, the second party raised objections thereto by claiming that the disputed land belongs to the second party and demolished the temporary latrine, which the first party had constructed on the disputed land. The dispute, so arisen between the two parties, has given rise to apprehension of loss of lives. MR Case No. 105/2000, aforementioned, accordingly came to be registered.
4. By order, dated 12.09.2000, the said proceeding under Section 144 Cr.P.C. was converted into a proceeding under Section 145 Cr.P.C. and an order was passed directing attachment of the disputed land. Both the parties to the said proceeding filed written statements claiming exclusive ownership and possession of the said land. In support of their respective cases, both the parties adduced evidence. The learned Magistrate, then, passed an order, on 01.03.2004, declaring possession of the land in favour of the first party. Aggrieved by declaration of possession so given, the second party filed a revision and the revision was dismissed by order, dated 08.08.2007, as indicated above. As the revision has been dismissed, the second party is, now, before this Court with the help of the present petition filed under Section 482 Cr.P.C.
5. What, now, needs to be noted is that there is no provision for conversion of a proceeding from one under Section 144 Cr.P.C. to 145 Cr.P.C. When a proceeding under Section 144 Cr.P.C. is converted into a proceeding under Section 145 Cr.P.C., what a Magistrate does, by making an order of conversion, is that he, basically, draws a proceeding under Section 145 Cr.P.C. Thus, such an order of conversion is nothing, but making of a preliminary order under Section 145(1).
6. Before I enter into the merit of this revision, it is imperative that the scheme of Section 145 read with Section 146 is borne in mind. Section 145 appears under Chapter X of the Code, which reads, "Maintenance of Public Order and Tranquility". This Chapter is divided into separate groups. Section 145 and 146 fall under Group-D. Though the heading of the Chapter, in any legislation, is not the sole criterion for determination of the scope of the provisions, which may be embodied in such a Chapter, the fact remains that the heading of the Chapter, in a piece of legislation, does reflect the legislative intent. A careful analysis of the various provisions, contained in Chapter X, would show that essentially, this Chapter deals with maintenance of public order and tranquility. In other words, a private dispute or a dispute, which has no bearing on public order and tranquility, cannot be regarded as a dispute amenable to the provisions of Section 145 Cr.P.C. and such a dispute does not, therefore, empower an Executive Magistrate to exercise jurisdiction under Sub-Section (1) of Section 145, which reads as under:
145(1). 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 of the fact of actual possession of the subject of dispute.
7. A close analysis of the provisions of Section 145 shows that the Magistrate is empowered to try a proceeding under Sub-section (1) of Section 145 if he is satisfied from a report of a police officer or upon other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction. A careful reading of Section 145(1) also shows that on receipt of report or information as aforementioned, the Magistrate shall make an order, in writing, stating the grounds of his being so satisfied and requiring the parties concerned, in the 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.
8. The provisions, contained in Sub-section (1) of Section 145, show that the source of information for the purpose of drawing a proceeding under Sub-section (1) of Section 145 is not material; what is material is that the Executive Magistrate must be satisfied about existence of a dispute as envisaged in Section 145(1) and must assign the grounds of his being so satisfied. This apart, the dispute must relate to a land, water or boundary thereof and the dispute must be such, which is likely to cause breach of the peace. The expression "breach of the peace' does not really mean mental peace of the parties concerned. Disturbance of public order is distinct from actions of the individuals, which do not disturb the society to the extent of vibrating a general disturbance of the even tempo of life of the community in a given locality. When a party, illegality or forcibly, occupies land of another, people, in general, or even neighbours of such a party may be shocked and mentally disturbed, but life of the community may still move keeping pace with the even tempo of the life of the community. If, by such act of dispossession, even tempo of the life of the community is disturbed or jeopardized, it may become a case of disturbance of public order and tranquility. The acts of a private party, which affect personal rights of another party, do not disturb the even tempo of the society, for, such feuds are private feuds. Basis of jurisdiction under Section 145(1) is a dispute, which is likely to cause a breach of the peace. It is not a breach of mental peace of the parties to apprehend danger of breach of peace in the locality. Ordinarily, a person dispossessed from his land shall sue for recovery of the immovable property under the provisions of the Specific Relief Act and if there is a threat of his dispossession, he should institute a suit to obtain injunction. These are ordinarily forum for establishing rights of the litigants. A proceeding under Section 145 is, therefore, an extra-ordinary provision to grant extra-ordinary relief, when there is likelihood of breach of the peace in a given locality. The final order of the Magistrate is subject to the decision of the Civil Court. It is, therefore, clear that private dispute between two persons, which does not disturb law and order or occasion breach of the peace in the locality, the forum for getting relief is the Civil Court of competent jurisdiction and not an Executive Magistrate's Court. In Ram Sumer Puri Mahant v. State of U.P. , the Apex Court has discouraged drawing of proceedings under Section 145 as far as possible. In fact, Ram Sumer Puri Mahant (supra) lays down that a Magistrate should initiate a proceeding under Section 145 only when the essential elements of the provisions contained in Section 145 are found to be present in a given case.
9. What emerges from the above discussion is that exercise of power under Section 145(1) cannot be arbitrary and the provisions of Section 145 cannot be invoked unless the conditions precedent prescribed therein are available. Coupled with this, what also needs to be noted is that an order of attachment can be passed by an Executive Magistrate in exercise of his powers under Sub-section (1) of Section 146 if upon drawing a proceeding under Sub-section (1) of Section 145, the Magistrate considers the case to be one of emergency. This position of law is not, in fact, in dispute. That an order of attachment under Section 146(1) is an interlocutory order is, in fact, not in dispute. Thus, an order of attachment cannot be made unless there is a proceeding under Section 145 is pending. An order of attachment under Section 146(1) is inherently temporary in nature as the order may be withdrawn at any time by the Magistrate if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. An order, under Section 146(1), is nothing, but a step-in-aid in the pending proceeding under Section 145. An order of attachment is, thus, neither a final order nor a quasi final order. In fact, by attachment, the subject of dispute becomes custodia legis. (See Deokuer v. Sheo Prasad ). Since an order of attachment is revocable at any stage of the proceeding, it becomes inherently temporary in nature and is, therefore, regarded as an interlocutory order. (See Indrapuri Primary Co-operative Housing Society Ltd. and Anr. v. Sri Bhabani Gogoi reported in (1991) 1 GLR 28.
10. When a Magistrate draws a proceeding under Section 145(1), the order, drawing the proceeding, is commonly known as preliminary order. Since there is no provision for conversion of the proceeding from one under Section 144 to 145 Cr.P.C., the order of conversion is nothing, but as already indicated above, a preliminary order. This order, therefore, must reveal that the conditions precedent for drawing of a proceeding under Section 145 stands satisfied. In the present case, the order of conversion of the proceeding does not disclose the grounds of satisfaction of the learned Magistrate nor does this order disclose as to why the dispute was treated to be a dispute, which was likely to cause breach of the peace.
11. Coupled with the above, the dispute in the present case, as indicated above, is out and out a private dispute inasmuch as the dispute did not involve anyone other than the parties to the proceeding and the members of the general public were neither affected nor were they shown to be interested in the dispute. Considered thus, the learned Magistrate had no jurisdiction in the matter and could not have drawn a proceeding under Section 145. This aspect of the matter appears to have totally escaped the notice of the learned revisional Court.
12. What emerges from the above discussion is that the preliminary order drawing proceeding was without jurisdiction and illegal. When the foundation of the proceeding is without jurisdiction, the question of making declaration of possession in favour of the parties to the proceeding and/or affirming such declaration by the revisional Court does not arise at all. Viewed thus, it is clear that the impugned order, dated 08.08.2007, dismissing the revision and upholding the order, dated 22.12.2006, cannot be sustained.
13. In the result and for the reasons discussed above, this revision succeeds. The impugned order, dated 08,08.2007, passed by the learned Additional Sessions Judge, (FTC), No. 1, as well as the order, dated 22.12.2006, passed by the learned Executive Magistrate, Sankar Dev Nagar, Hojai, are hereby set aside.
With the above observations and directions, this Criminal Petition shall stand disposed of.