Surendra Yadav vs The State Of Bihar on 25 November, 2025

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Patna High Court

Surendra Yadav vs The State Of Bihar on 25 November, 2025

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.4170 of 2018
Arising Out of PS. Case No.- Year-1111 Thana- District-
======================================================
Surendra Yadav, Son of Shri Mahesh Yadav, Resident of Village- Mathurapur,
Police Station- Mathurapur, District- Bhagalpur.

... ... Petitioner/s
Versus
1. The State of Bihar
2.1. Vijay Yadav S/o Late Sitaram Yadav R/o vill- Mathurapur, P.S - Bhawanipur
(Bihpur), Distt.- Bhagalpur
2.2. Ajay Yadav S/o Late Sitaram Yadav R/o vill- Mathurapur, P.S - Bhawanipur
(Bihpur), Distt.- Bhagalpur
2.3. Raja Yadav S/o Late Sitaram Yadav R/o vill- Mathurapur, P.S - Bhawanipur
(Bihpur), Distt.- Bhagalpur
2.4. Baleshwar Yadav S/o Late Sitaram Yadav R/o vill- Mathurapur, P.S -
Bhawanipur (Bihpur), Distt.- Bhagalpur
3.1. Subhash Yadav S/o Late Maheshwari Yadav R/o vill- Mathurapur, P.S -
Bhawanipur, (Bihpur), Distt.- Bhagalpur
3.2. Sagar Yadav @ Prem Kumar Yadav S/o Late Maheshwari Yadav R/o vill-
Mathurapur, P.S - Bhawanipur, (Bihpur), Distt.- Bhagalpur
3.3. Santosh Yadav S/o Late Maheshwari Yadav R/o vill- Mathurapur, P.S -
Bhawanipur, (Bihpur), Distt.- Bhagalpur
4. Sudhir Yadav S/o Late Bhusi Yadav R/o vill- Mathurapur, P.S - Bhawanipur,
Distt.- Bhagalpur

... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Vikram Singh, Advocate
For the O.P. No. 4 : Mr. Shashi Shekhar, Advocate
For the State : Mr. Ajit Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 25-11-2025
Heard Mr. Vikram Singh, learned counsel

appearing on behalf of the petitioner; Mr. Shashi Shekhar,

learned counsel for the O.P. No. 4 and Mr. Ajit Kumar, learned

A.P.P. for the State.

2. The petitioner has preferred application under
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Section 482 Cr.P.C. for quashing of order dated 17.05.2016

passed by the Executive Magistrate, Naugachia in

Miscellaneous Case No. 296 of 2008 (T. R. No. 05/16) against

the petitioner and order dated 24.07.2017 passed by the learned

1st Additional Session Judge, Naugachia in Criminal Revision

No. 95 of 2016, by which the order dated 17.05.2016 was

affirmed.

3. The prosecution story in brief is that both the

parties, who are agnate, have claimed their possession and title

over a land relating to Khata No. 221, Khesra No. 2169

measuring 24 decimal, on which, both the parties had

constructed temporary house. It has been alleged by the opposite

party that the petitioner had conspired and had tried to construct

permanent house over the said land and after protest by the

opposite party, the petitioner had abused him. Thereafter, the

opposite party had approached the police station, who had

recommended for initiation of proceeding under Section 144

Cr.P.C. against the petitioner and had also lodged criminal case

against him.

4. Learned counsel appearing on behalf of the

petitioner submitted that the after service of notice under

Section 144 Cr.P.C., the petitioner and other accused had
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tendered their appearances and filed show cause denying the

allegation levelled against them by the opposite party relating to

possession of disputed land and had claimed their possession

over the said land as the petitioner had constructed his house

much earlier to the initiation of proceeding under Section 144

Cr.P.C. He further submitted that there is no dispute over the

possession of the disputed land, rather, it relates to entries made

during survey of operation in which, name of both the parties

were entered by the review authority and taking advantage of

that entries, the opposite party had tried to create a case of

dispute relating to possession of the aforesaid land, upon which,

both the parties have constructed their residential houses. He

further submitted that learned District Court, without

considering the show cause of the petitioner and the documents

produced, had converted the proceeding under Section 145 of

the Cr.P.C. on 16.08.2008 and directed the parties to file written

statement. On 30.04.2015, the proceeding was transferred from

the Sub-Divisional Magistrate, Naughachiya to the Court of

learned Executive Magistrate, Naugachiya, who without serving

fresh notice under Section 145 Cr.P.C. had proceeded ex-parte

against the petitioner and examined the witnesses of the

opposite party and passed an ex-parte order dated 17.05.2016 in
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Miscellaneous Case No. 296 of 2008 (T. R. No. 05/16). The

petitioner agrrieved by the ex-parte order dated 17.05.2016,

filed Revision before the learned 1 st Additional Session Judge,

Naugachia in Criminal Revision No. 95 of 2016, who vide order

dated 24.07.2017, without analysing and applying his mind,

affirmed the order dated 17.05.2016. Learned counsel has

questioned both the aforesaid orders before this Court.

5. Per contra, learned counsel appearing on behalf

of the opposite party no. 4 submitted that the S.D.O. had

exercised his jurisdiction and upon enquiry, after being satisfied,

he had concluded on the basis of the evidences and the specific

entry of name of the opposite party in the Khatiyan in respect of

Khata No. 221, Khesra No. 2169 measing total area 24 decimal.

He further submitted that both the S.D.O., Naugachia and the

Revisional Court, have not erred in passing the impugned

orders, which is based on actual possession of the opposite party

over the land in question.

6. Heard the parties.

7. Having considered the rival submissions made

on behalf of the parties, as well as, having perused the

informations contained in the application filed before the

S.D.O., Naugachia, which relates to determination of possession
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over a piece of land relating to Khata No. 221, Khesra No. 2169

measuring total area 24 decimal. Both the parties are agnates.

Record reveals that there was a partition between both the sides

and after partition, respective parties had constructed their

temporary houses over the land described as above. It has been

alleged by the opposite parties that petitioner had tried to

construct permanent house over the joint property, to which, the

opposite party had protested and petitioner had abused them.

The opposite party had approached the local police station, who

recommended for initiation of proceeding under Section 144

Cr.P.C. against the petitioner and others as well as, criminal case

also. The proceeding under Section 144 Cr.P.C. was initiated in

the Court of Sub-Divisional Magistrate, Naugachia.

8. It is the case of the petitioner that taking

advantage of the Survey Amin, the opposite party, on the basis

of incorrect entry of the name of their ancestor, started with the

dispute in respect of possession of the aforesaid piece of land.

The petitioner claims his possession and title over the said piece

of land, which is subject matter of dispute between the parties.

The challenge to the order passed by the Sub-Divisional

Magistrate is on the ground that S.D.O. has proceeded to decide

the title of the petitioner on the basis of the entry made in the
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Khatiyan and has given complete go by to the procedure

established by law. The procedure prescribed under Sections

144 and 145 Cr.P.C. are relevant to decide the present case,

which are reproduced hereinafter:

"144. Power to issue order in urgent cases
of nuisance or apprehended danger.
(1) In cases where, in the opinion of a
District Magistrate, a Sub-Divisional Magistrate or any
other Executive Magistrate specially empowered by the
State Government in this behalf, there is sufficient ground
for proceeding under this section and immediate prevention
or speedy remedy is desirable, such Magistrate may, by a
written order stating the material facts of the case and
served in the manner provided by section 134, direct any
person to abstain from a certain act or to take certain order
with respect to certain property in his possession or under
his management, if such Magistrate considers that such
direction is likely to prevent, or tends to prevent,
obstruction, annoyance or injury to any person lawfully
employed, or danger to human life, health or safety, or a
disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this Section may, in cases
of emergency or in cases where the circumstances do not
admit of the serving in due time of a notice upon the person
against whom the order is directed, be passed ex parte.
(3) An order under this Section may be
directed to a particular individual or to persons residing in
a particular place or area, or to the public generally when
frequenting or visiting a particular place or area.
(4) No order under this Section shall remain
in force for more than two months from the making
thereof :Provided that, if the State Government considers it
necessary so to do for preventing danger to human life,
health or safety or for preventing a riot or any affray, it
may, by notification, direct that an order made by a
Magistrate under this section shall remain in force for such
further period not exceeding six months from the date on
which the order made by the Magistrate would have, but for
such order, expired, as it may specify in the said
notification.
(5) Any Magistrate may, either on his own
motion or on the application of any person aggrieved,
rescind or alter any order made under this section by
himself or any Magistrate subordinate to him or by his
predecessor-in-office.
(6) The State Government may, either on its
own motion or on the application of any person aggrieved,
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rescind or alter any order made by it under the proviso to
sub-section (4).
(7) Where an application under sub-section
(5) or sub-section (6) is received, the Magistrate, or the
State Government, as the case may be, shall afford to the
applicant an early opportunity of appearing before him or
it, either in person or by pleader and showing cause against
the order; and if the Magistrate or the State Government, as
the case may be, rejects the application wholly or in part,
he or it shall record in writing the reasons for so doing.
[144-A. Power to prohibit carrying arms in
possession or mass drill or mass training with arms
[Inserted by (Amendment) Act, 2005, Section 16.]
(1) The District Magistrate may, whenever
he considers it necessary so to do for the preservation of
public peace or public safety or for the maintenance of
public order, by public notice or by order, prohibit in any
area within the local limits of his jurisdiction, the carrying
of arms in any possession or the organising or holding of,
or taking part in, any mass drill or mass training with arms
in any public place.
(2) A public notice issued or an order made
under this Section may the directed to a particular person
or to persons belonging to any community, party or
organisation.
(3)No public notice issued or an order made
under this Section shall remain in force for more than three
months from the date on which it is issued or made.
(4)The State Government may, if it considers
necessary so to do for the preservation of public peace or
public safety or for the maintenance of public order, by
notification, direct that a public notice issued or order
made by the District Magistrate under this Section shall
remain in force for such further period not exceeding six
months from the date on which such public notice or order
was issued or made by the District Magistrate would have,
but for such directions, expired, as it may specify in the said
notification.
(5)The State Government may, subject to
such control and directions as it may deem fit to impose, by
general or special order, delicate its powers under sub-
section (4) to the District Magistrate.
Explanation - The word "arms" shall have
the meaning assigned to it in Section 153 - AA or the Indian
Penal Code, 1860].
D. Disputes as to immovable property
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
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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.
(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 of 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 this 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
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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. At the stage of Section 144, there has to be an

enquiry conducted by a competent officer or the magistrate

concerned may on his own conduct enquiry. From the perusal

of the order passed by the S.D.O., I find that there is reference

that enquiry was conducted, however, from the enquiry report,

which has been submitted before this Court on behalf of the

opposite party no. 4, I find that there is no opinion formed by
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the S.D.O. on the basis of the enquiry report submitted by the

concerned police officer and Circle Officer. On perusal of the

enquiry report, it cannot be said that the officers have conducted

spot enquiry. The enquiry report gives finding that the land was

in possession of the opposite parties on the basis of entry in the

Khatiyan.

10. In such circumstances, the question arises,

whether the S.D.O. was justified in initiating proceeding and

taking action under Section 145 Cr.P.C.?

11. The petition filed under Section 144 of the

Cr.P.C. by the opposite parties don't contain any description or

any information, as to whether, the opposite parties have paid

any rent receipt in respect of the said piece of land to show their

possession. At the same time, there is no discussion in the order

impugned by the SDO in respect of any evidence shown on

behalf of the opposite parties. I find that the SDO in exercise of

his jurisdiction in most malafide manner has proceeded to pass

an order under influence. Based on the similar facts, I find that

the law laid down by the Apex Court in case of Ashok Kumar v.

State of Uttarakhand reported in (2013) 3 SCC 366 almost

supports the case of the petitioners and in this regard, I find it

apt to place the observation made in para-13 to 16 of the
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judgment passed by the Apex Court, which is as under:

"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.
14. We find from this case there is nothing to show that an
emergency exists so as to invoke Section 146(1) and to attach the
property in question. A case of emergency, as per Section 146 of
the Code has to be distinguished from a mere case of
apprehension of breach of peace. When the reports indicate that
one of the parties is in possession, rightly or wrongly, the
Magistrate cannot pass an order of attachment on the ground of
emergency. The order acknowledges the fact that Ashok Kumar
has started construction in the property in question, therefore,
possession of property is with the appellant - Ashok Kumar,
whether it is legal or not, is not for the SDM to decide.
15. We also notice that the respondent herein has filed a civil suit
for injunction before Civil Judge (J.D.) Haridwar on 02.09.2009
and an application for interim injunction is also pending, on
which the civil court has issued only a notice. An Amin report
was called for and Amin submitted its report on 21.11.2009. Civil
suit was filed prior in point of time, it is for the civil court to
decide as to who was in possession on the date of the filing of the
suit. In any view, there is nothing to show that there was an
emergency so as to invoke the powers under Section 146(1) to
attach the property, specially, when the civil court is seized of the
matter. Under such circumstances, we are inclined to set aside
the order passed by the SDM dated 25.11.2009 and the order of
the High court dated 27.03.2012.
16. Learned counsel appearing for the appellant submitted that
he will not change the character of the property or create third
party rights in respect of the property in question till the civil
court passes final orders on the application filed by the
respondent for temporary injunction. The submission of the
learned counsel is recorded and we direct the civil court to pass
final orders on the interim application filed by the respondent for
injunction. We make it clear that we have also not expressed any
final opinion on the contentions raised by the learned counsel.
We have however found that no ground exists to attach the
property under Section 146, Cr.P.C."

12. The petitioner side had approached the
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Revisional Court by filing Criminal Revision No. 95 of 2016

under Section 397 of the Cr.P.C., who also, without considering

the provision had concluded that the land in question was in

possession of the opposite party, however, no reference of even

rent receipt has been taken into consideration by the S.D.O. or

the Revisional Court to show that the land in question was in

possession of the opposite party. The action of the S.D.O. can

only lead to conclude that he, in a most mala fide manner, had

proceeded to pass order in the interest of the opposite party.

Accordingly, now I proceed to consider whether the order

passed under Section 145 Cr.P.C. can be justified on the above

material and in exercise of jurisdiction under Section 482

Cr.P.C., the orders can be questioned, prima facie, if it appears

that the allegation against the petitioner is essentially civil in

nature. The law in this regard is well settled in the case of State

of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC

335.

13. The record reveals that both the parties failed to

produce evidences in favour of their possession, however, it is

evident from the record that the parties admit that they are in

possession of their respective part. Though, it has been claimed

by the opposite party that till date, no partition between the
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parties have been arrived or any suit is pending for partition

between the parties.

14. In such circumstances, the impugned order

dated 17.05.2016 passed by the S.D.O. and order dated

24.07.2017

passed by the Revisional Court are hereby quashed and set aside taking into consideration that the dispute is primarily civil in nature relating to land in question and in view of the law laid down by the Apex Court that in absence of any criminal element, the criminal proceeding in cloak of civil dispute should not be allowed to proceed.

15. Accordingly, the present application stands disposed of.

16. The parties may avail appropriate remedy before the competent Civil Court.

(Purnendu Singh, J) Niraj/-

AFR/NAFR                A.F.R.
CAV DATE                N/A
Uploading Date          01.12.2025
Transmission Date       01.12.2025

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