Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 35883 of 2012 ====================================================== 1. Rama Kant Jha, S/o Late Ramchandra Jha 2. Kamala Kant Jha @ Pagal Jha, S/o Late Ramdhin Jha 3. Ram Chandra Jha, S/o Late Anirudh Jha 4. Satya Narayan Jha, S/o Late Laxmi Kant Jha 5. Raj Kumar Jha, S/o Buchu Jha 6. Babu Prasad Jha @ Bhokan Jha, S/o Late Narayan Jha 7. Arun Kumar Jha @ Hari Jha, S/o Laxmi Kant Jha 8. Chandra Kant Jha, S/o Late Asharfi Jha 9. Baidyanath Jha, S/o Late Asharfi Jha 10. Jaiballabh Jha shown as Jaibardhan Jha, S/o Late Tirpit Narayan Jha All residents of Villages - Thengaha, P.S.- Sakatpur, District- Darbhanga .... .... Petitioner/s Versus 1. The State of Bihar 2. Shatrughan Jha, S/o Late Chandra Shekhar Jha 3. Indra Kant Jha, S/o Late Jai Kant Jha 4. Shyam Narayan Jha, S/O Madhu Jha 5. Jadubir Roy, S/o Late Bideshsar Roy 6. Ashok Kumar Jha @ Kapildeo Jha, S/o Late Laxmi Narayan Jha All Serial Nos. 2 to 6 are resident of Village - Thengha, P.S.- Sakatpur, District- Darbhanga .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 2 29-04-2013 Heard. 2. This is a petition for quashing the order dated 15.05.2012 passed by learned Sessions Judge, Darbhanga in
Legal Reasoning
Cr. Revision No. 117 of 2012 by which he has confirmed the order dated 21.02.2012 passed by the S.D.M., Sadar, Darbhanga initiating a proceeding under Section 145 Cr.P.C. 3. From perusal of the order dated 21.02.2012, it is apparent that the learned S.D.M., Sadar, Darbhanga initiated a proceeding under Section 145 Cr.P.C. being satisfied on the Patna High Court Cr.Misc. No.35883 of 2012 (2) dt.29-04-2013 2 police report that there is apprehension of breach of peace with regard to the land in question. 4. Learned counsel for the petitioners, however, contended that prior to the initiation of the proceeding under Section 145 Cr.P.C. a proceeding under Section 144 Cr.P.C. was initiated between the parties in which the parties had filed show cause. The first party claimed that they had given money for purchase of land but the same was not registered and they claimed to be the Bataidar and having the possession of the land. The second party claimed that they have purchased the land by registered sale deed and are in peaceful possession of the lands in question. 5. Taking into consideration the respective submissions of the parties the learned Magistrate held that it is not proper to pass any effective order in the case and the proceeding under Section 144 Cr.P.C. was dropped by order dated 18.05.2011. Thereafter on police report this fresh proceeding has been initiated by the order impugned dated 21.02.2012 on the police report. 6. Section 145 Cr.P.C. provides that whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause Patna High Court Cr.Misc. No.35883 of 2012 (2) dt.29-04-2013 3 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. 7. Here the Magistrate being satisfied with the police report that there is apprehension of breach of peace and further being satisfied that both the parties are claiming possession over the land, by its order dated 21.02.2012, initiated proceeding under Section 145 Cr.P.C. 8. Learned counsel for the petitioners, however, contended that in the petition of the first parties though the Khesra and area have been shown to be 25 Bigha and 3.6 Katha with specific form but in the content it has been written that the total area is 25 Bigha, out of which 6 Bigha is in their possession and on rest 12 Bigha is of other party and on 12 Bigha belongs to the petitioners and other side. 9. Learned counsel for the petitioners relied upon a decision in the case of Uttam Lal Yadav and another Versus Patna High Court Cr.Misc. No.35883 of 2012 (2) dt.29-04-2013 4 State of Bihar and another reported in 1997(1) East CrC 490 (Pat) where it has been held that when in proceedings under Section 144 of the Code the Magistrate after considering all the facts and the evidence came to a finding that all the documents filed by respondent No. 2 do not relate to the disputed land rather petitioner’s title and possession was proved on the basis of the documents filed by them. Learned Magistrate after having satisfied with the case of the petitioners with regard to title and possession passed final order and restrained respondent No. 2 from interfering with the petitioner’s possession and further observed that the respondent No. 2 may ventilate his claim before the competent civil court. In that fact and circumstance initiation of fresh proceeding under Section 145 Cr.P.C. was rejected on the ground that there was no occasion for the Sub-Divisional Magistrate to initiate a fresh proceeding just after 12 days in respect of the same land and between the same parties. However, applying the decision reported in the case of Uttam Lal Yadav (Supra) the learned Magistrate after having satisfied with the case of the petitioners with regard to title and possession passed final order and restrained respondent No. 2 from interfering with the petitioner’s possession. Learned Magistrate further observed Patna High Court Cr.Misc. No.35883 of 2012 (2) dt.29-04-2013 5 that the respondent No. 2 may ventilate his claim before the competent civil court. However, in the facts and circumstances of the present case the learned Magistrate has held that in this proceeding, it is not proper to pass any effective order in the interest of justice and drop the proceeding.
Legal Reasoning
10. Learned counsel for the petitioners, however, further placed reliance upon a decision in the case of Jayanti Prasad and others v. Kamal Narain and others reported in 1998 CRI. L. J. 4689 where it has been held that this is a case with regard to initiation of proceeding or joint property proceeding and as also held that mutual partition has not been established. Under such circumstances proceedings under Section 145 Cr.P.C. cannot be initiated. However, there is no averment that the property is joint or the parties are co-sharer and hence, the decision relied upon in the case of Jayanti Prasad (Supra) is not applicable. 11. Learned counsel for the petitioners also placed reliance upon a decision in the case of Ramesh Chandra Saxena v. VIth Additional Sessions Judge, Aligarh and others reported in 1998 CRI. L. J. 3794 where it has been held that initiation of proceedings under Section 145 on basis of mere police report which did not disclose a dispute and emergency Patna High Court Cr.Misc. No.35883 of 2012 (2) dt.29-04-2013 6 to attach property and hence, in that circumstance the initiation of proceeding is bad, not applicable to the facts and circumstances of the case. 12. Hence, having regard to the facts and circumstances of the case, since for initiation of proceeding under Section 145 Cr.P.C. the two requirements are - satisfaction of the Magistrate that there is apprehension of breach of peach and that too with regard to dispute relating to land between the parties that gives the jurisdiction to the Magistrate for initiation of the proceeding. However, the Magistrate having been satisfied with the police report that there is apprehension of breach of peace and with regard to a dispute relating the land in question with specified boundary and hence, I do not find any merit to interfere with the order initiating proceeding under Section 145 Cr.P.C. and the order impugned confirming the order in revision by the Sessions Judge, Darbhanga and hence, I do not find any merit in the petition which is, accordingly, dismissed. Kundan/- (Gopal Prasad, J)