Bindeshwar Sahu & Ors. v. The State Of Bihar & Ors.

Dispute and claim over the disputed land of the parties to the satisfaction of the trial Court was likely to cause breach of peace, first was reported for initiation of proceeding under Section 144 of the Cr.P.C. which later was converted into under Section 145 of the Cr.P.C. Parties filed written statement, documentary evidence as well as oral evidence. Different documents are there as mentioned by the trial Court as well as the witnesses. Elaborate procedure is laid down under Section 145 of the Cr.P.C. to decide the differences of parties for their possession over the land in 2 Patna High Court Cr.Misc. No.21177 of 2010 (15) dt.08-02-2013 dispute. Apparently appears, observing the same possession over the disputed land has been decided by the trial Court (Sub- divisional Magistrate, Phulpras) in M.R. Case No. 213 of 1987 under Section 145 of the Cr.P.C. Procedure if really is adopted and absorbed is to be looked into for which Court is to go through the provision of Section 145 (1) of the Cr.P.C which runs as follows : “whenever an Executive Magistrate 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. So it is clear that whenever it comes to the satisfaction of the Magistrate that there is need to decide the claim of the parties under Section 145 of the Cr.P.C. then first duty cast upon the Magistrate is to require the party concerned to attend his Court in person or by pleader and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Actual possession of the subject of dispute is emphasized. What is to be decided by the Magistrate is more clear 3 Patna High Court Cr.Misc. No.21177 of 2010 (15) dt.08-02-2013 under Sub-section-4 of Section 145 of the Cr.P.C. which runs as follows:- “ The Magistrate shall then, without reference to 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 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 possession on the date of his order under sub- section (1).” that party had been To decide the differences, Court is to peruse the statements of the parties so put in, hear them, receive all evidences as may be produced by them, take further such evidence, if any is produced, and then decide which of the parties was in possession of the subject of the dispute at the date of order made by the Magistrate. It can be related back to an earlier date also if any of the parties was forcibly and wrongfully dispossessed within two months next before the date on which the report of police officer or other information was received by the Magistrate, but in the 4 Patna High Court Cr.Misc. No.21177 of 2010 (15) dt.08-02-2013 instant case actually possession was to be decided has not been considered at all. All the documents either concerning title of the parties over disputed land or their right to possession have been taken into consideration. No doubt, documents possibly showing possession of the parties have mentioned also, but without identifying them. In cases u/s 145 Cr.P.C oral evidence on point of possession plays an important role but no oral evidence (witness) is discussed at all though have been mentioned as witnesses of first party and second party. It has not been discussed as what they really state on the point of possession of the parties and if tested in cross-examination what appeared to believe or disbelieve them. This much of the infirmity has not been raised in the Revisional Court nor decided and order of the trial Court is confirmed. Some wrong observation has also been made by the trial Court that daughter of a person died in the year 1926 would come in possession over the land of her father while legal position is that before the year 1929 daughter was not even in category of heir of a person. For the first time in the year 1929 she was introduced in Hindu Law as heir of a deceased. Finding none observation of the procedure, the order passed by the trial Court as well as by the Revisional Court is not liable to be sustained. 5 Patna High Court Cr.Misc. No.21177 of 2010 (15) dt.08-02-2013 Accordingly, this quashing application is allowed. Impugned order dated 17.02.2010 passed by learned Additional District and Sessions Judge-2, Madhubani in Cr. Revi. No. 518 of 1999 along with the original order passed by trial Court(Magistrate) is hereby quashed. Office is directed to send back the case record to the Court below (trial Court) to decide the same afresh. (Mandhata Singh, J) Prakash/A.F.R.