Page No.# 1/15 vs The State Of Assam And Anr
2021 Latest Caselaw 3374 Gua

                                                                Page No.# 1/15

GAHC010012972021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : Crl.Rev.P./29/2021

         SMT. JAMINI RABHA AND 5 ORS
         W/O LATE CHHAYA RAM RABHA, R/O VILL-LOCHANA (TARAPATI), P.S.-
         POLASBARI (MIRZA), DIST-KAMRUP, PIN-781125, ASSAM

         2: INDHU BHUSAN RABHA
          S/O LATE CHHAYA RAM RABHA
          R/O VILL-LOCHANA (TARAPATI)
          P.S.-POLASBARI (MIRZA)
          DIST-KAMRUP
          PIN-781125
         ASSAM

         3: PADUM RABHA
          S/O LATE CHHAYA RAM RABHA
          R/O VILL-LOCHANA (TARAPATI)
          P.S.-POLASBARI (MIRZA)
          DIST-KAMRUP
          PIN-781125
         ASSAM

         4: SMT. BIROJA RABHA
          D/O LATE CHHAYA RAM RABHA
          R/O VILL-LOCHANA (TARAPATI)
          P.S.-POLASBARI (MIRZA)
          DIST-KAMRUP
          PIN-781125
         ASSAM

         5: SMT. GEETIMA RABHA
          D/O LATE CHHAYA RAM RABHA
          R/O VILL-LOCHANA (TARAPATI)
          P.S.-POLASBARI (MIRZA)
          DIST-KAMRUP
          PIN-781125
                                                                     Page No.# 2/15

             ASSAM

            6: NAYAN PRASAD RABHA (MINOR)
             S/O LATE CHHAYA RAM RABHA
             R/O VILL-LOCHANA (TARAPATI)
             P.S.-POLASBARI (MIRZA)
             DIST-KAMRUP
             PIN-781125
            ASSAM (REPRESENTED BY SMT. JAMINI RABHA (MOTHER) PETITIONER
            NO. 1

            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:RAJ BARUAH
             S/O LATE RABINDRA NATH BARUAH
             R/O C.K. AGARWALLA ROAD
             JURPUKHURI UZAN BAZAR
             P.S.-LATASIL
             GUWAHATI
             DIST-KAMRUP(M)
            ASSAM
             PIN-78100

Advocate for the Petitioner   : MR. N C DAS

Advocate for the Respondent : PP, ASSAM




                                     BEFORE
                         HONOURABLE MR. JUSTICE NANI TAGIA

                                          ORDER

Date: 09.12.2021

Mr. N. C. Das, learned senior counsel appearing on behalf of the petitioners; Mr. Bidyut Sarma, learned Addl. P.P., Assam, for respondent No. 1; and Mr. Diganta Das, learned senior counsel, for respondent No. 2, were heard on 25.11.2021 and it has been listed today for delivery of order.

2. This revision petition u/s. 397 read with Section 482 of the Code of Page No.# 3/15

Criminal Procedure, 1973, is directed against the order, dated 06.11.2020, passed by the Court of the learned Executive Magistrate, Kamrup Metropolitan

District, Guwahati, in Case No. 25m/2018(Shri Chhaya Ram Rabha, 1 st Party v.

Shri Raj Baruah, 2nd Party), u/s. 145 of the Code of Criminal Procedure, 1973, whereby the case has been disposed of as not maintainable.

3. The facts relevant for disposal of the instant revision petition, briefly, stated, are as follows:

The predecessor-in-interest of the petitioners, namely, late Chhaya Ram

Rabha, as 1st Party, had filed an application on 06.12.2017, u/s. 145 read with Section 146 of the Code of Criminal Procedure, 1973, praying for a declaration of possession u/s. 145 of the Code of Criminal Procedure, 1973, in favour of the petitioner in respect of a plot of land measuring 3 Kathas covered by Dag No. 36, Patta No. 30 of village Bormotoria under Mouza Beltola, in the district of Kamrup(M), Guwahati, Police Station : Dispur, which is bounded by on the north : Dag No. 17; on the south : Road; on the east : land of Manesh Dutta, now land of some Barman; and on the west : Road; before the Court of learned Addl. District Magistrate, Kamrup(Metro),Guwahati.

The petitioner, in his application, u/s. 145 of the Code of Criminal Procedure, 1973, filed before the learned Addl. District Magistrate, Kamrup(Metro), Guwahati, had contended that Rabindra Nath Baruah(since deceased), the father of respondent No. 2; who was in good relationship with the predecessor-in-interest of the present petitioners, namely, late Chhaya Ram Rabha had taken a sum of Rs. 3 Lakhs as a sale consideration for the plot of land described hereinabove and assured to execute the sale deed in favour of him immediately on receipt of the sale permission from the office of the DC, Page No.# 4/15

Kamrup(Metro), Guwahati, and also on receipt of the NOC from the office of the Guwahati Metropolitan Development Authority(GMDA).

The physical possession of the land, in question, has been stated to have delivered by late Rabindra Nath Barua to late Chhaya Ram Rabha in the year 1998 and since then, the petitioners have been in possession of the said plot of land until 01.12.2017, on which date, the respondent No. 2 dispossessed the petitioners from the land, in question, with the help of 6(six) unknown persons.

The respondent No. 2 on receipt of the notice, filed his written statement on 10.06.2019, wherein the respondent No. 2 while denying the contention of the petitioners, has set-out his own version of the case and has stated that in respect of the disputed land, in question; the respondent No. 2 along with one Shri Rahul Barooah, had filed a suit against one Sri Rajib Baruah and 6 others, in the Court of learned Civil Judge No. 3, Kamrup, Guwahati, which was registered as T.S. No. 421/2012, praying for a decree " declaring joint right, title and interest on the plaintiff in respect of the suit land. Confirmation of possession and present injunction and restraining the defendants from alienating the suit land." (Quoted from Paragraph No. 5 of the judgment, dated 23.12.2014, in T.A. 07/2014). The T.S. No. 421/2012, however, was dismissed by the learned Civil Judge No. 3, Kamrup, Guwahati, vide judgment, dated 20.01.2014. Against the judgment, dated 20.01.2014, passed in T.S. No. 421/2012, by the Court of learned Civil Judge No. 3, Kamrup, Guwahati; a Title Appeal No. 07/2014 was preferred by the plaintiffs/appellants before the Addl. District Judge No. 1, Kamrup, Guwahati, which appeal was allowed vide judgment, dated 23.12.2014, whereby the judgment, dated 20.01.2014, passed by the Court of learned Civil Judge No. 3, Kamrup, Guwahati, in T.S. No. 421/2014, has been set aside.

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In the light of the above, the respondent No. 2 had contended before the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, that since the disputed land, in question, has been decided in favour of respondent No. 2 by the civil Court; an application filed by the petitioners u/s. 145 of the Code of Criminal Procedure, 1973, may be dismissed.

On basis of the contentions raised by the parties, the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, by the impugned order, dated 06.11.2020, dismissed the Case No. 25m/2018 as not maintainable on the ground that civil Court decree has already been passed in this case in T.S. No. 421/2012. In holding the proceeding under Section 145 of the Code of Criminal Procedure, 1973, as not maintainable in view of the decree passed in T.S. No. 421/2012; the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, has relied on a decision rendered by the Hon'ble Apex Court in Ram Sumer Puri Mahant v. State of U.P. & ors.[reported in (1985) 1 SCC 427].

4. I have heard the learned counsels appearing for the parties at length.

5. Mr. N. C. Das, learned senior counsel, appearing for the petitioners, putting-forth his arguments on behalf of the petitioners, does not dispute the fact that the land, in question, for which the petitioners had filed an application u/s. 145 of the Code of Criminal Procedure, 1973, is one and the same that has been decreed in T.S. No. 421/2012 by the first appellate Court in T.A. No. 07/2014.

Mr. Das, learned senior counsel, while not disputing that the disputed land, in question, in both the proceedings, are one and the same, however, submits that the jurisdiction of the Magistrate u/s. 145 of the Code of Criminal Page No.# 6/15

Procedure, 1973, being limited to the question of possession of the land at a given point of time; the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, has failed to exercise his power for determination of the possession of the disputed land u/s. 145 of the Code of Criminal Procedure, 1973, for which, the matter needs to be remanded back to the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, for a fresh decision in accordance with the letter and spirit of Section 145 of the Code of Criminal Procedure, 1973.

6. Mr. Diganta Das, learned senior counsel, appearing for respondent No. 2, by referring to the application filed by the petitioner u/s. 145 of the Code of Criminal Procedure, 1973, before the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, has argued that the petitioners, in their application, themselves had stated that they were in possession of the disputed land, in question, till the morning of 01.12.2017, which would mean that the petitioners are no longer in possession of the said disputed land after 01.12.2017, and accordingly, insofar as the possession of the disputed land, in question, is concerned; nothing remains to be determined by the the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, in the application filed by the petitioners. The learned senior counsel further submits that since the land, in question, has already been decreed in favour of respondent No. 2 by the civil Court, which is binding in nature; the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, has rightly held that the application filed by the petitioners u/s. 145 of the Code of Criminal Procedure, 1973, is not maintainable. The learned senior counsel further submits that a proceeding cannot be drawn in a private dispute between the parties unless the breach of peace in the life and community of the locality Page No.# 7/15

is not likely to be caused.

In support of his contentions, Mr. Diganta Das, learned senior counsel for respondent No. 2, has relied on a decision of the Hon'ble Apex Court rendered in Ram Sumer Puri Mahant v. State of U.P. & ors.[ reported in (1985) 1 SCC 427] and a decision of this Court rendered in Md. Ansar Uddin v. State of Assam & ors.[reported in 2007 SCC Online Gau 93].

7. Rival submissions advanced by the contesting parties have received due consideration of this Court and materials made available on record, have also been perused.

8. Learned counsels for the parties have not disputed the fact that the land, in question, described in the schedule of the impugned order, dated 06.11.2020, passed by the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, in Case No. 25m/2018, is one and the same which has been decreed in favour of the respondent No. 2 in T.A. 07/2014 vide judgment & decree, dated 23.12.2014, passed by the Court of learned AddL. District Judge No. 1, Kamrup, Guwahati.

9. On perusal of the impugned order, dated 06.11.2020, passed by the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, in Case No. 25m/2018, it is noticed that an application filed by the petitioners u/s. 145 of the Code of Criminal Procedure, 1973, has been dismissed as not maintainable only on the ground that the decree has been recorded in T.S. No. 421/2012 vide order, dated 20.01.2014. While dismissing the application filed by the petitioners u/s. 145 of the Code of Criminal Procedure, 1973, as not maintainable, the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, has relied on the decision of the Ram Sumer Puri Mahant v.

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State of U.P. & ors. [reported in (1985) 1 SCC 427]. It has, therefore become necessary to examine the ratio of the decision rendered by the Hon'ble Apex Court in Ram Sumer Puri Mahant(supra) to find-out as to whether the said decision rendered by the Hon'ble Apex Court actually applies in the facts and circumstances of the instant case.

10. On perusal of the decision rendered by the Hon'ble Apex Court in Ram Sumer Puri Mahant(supra), it is noticed that the ratio laid down in the said case is for a proposition that where a civil litigation is pending for the same property wherein question of possession is involved and the parties are in a position to approach the civil Court for interim orders such as injunction, or appointment of receiver, or adequate protection of the property during the pendency of the dispute, there is no justification for initiating a parallel criminal proceeding u/s. 145 of the Code of Criminal Procedure, 1973, inasmuch as the multiplicity of litigation is not in the interest of the parties nor public time should be allowed to be wasted over meaningless litigations. Thus, the ratio laid down in Ram Sumer Puri Mahant(supra), would be applicable to dismiss an application u/s. 145 of the Code of Criminal Procedure, 1973, when a civil litigation is pending for the same property.

11. In the instant case, what is noticed is that the respondent No. 2 had to file a T.S. No. 421/2012, against one Shri Rajib Baruah as the said Shri Rajib Baruah was found to have recorded his name in the jamabandi pertaining to the disputed land, in question, which, title suit proceeded ex-parte against him and though dismissed vide judgment, dated 20.01.2014, the same was reversed in T.A. 07/2014 filed by respondent No. 2 vide judgment & decree, dated 23.12.2014, passed by the first appellate Court i.e. Court of learned AddL. District Judge No. 1, Kamrup, Guwahati.

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12. Though the first appellate Court vide judgment & decree, dated 23.12.2014, had decreed the disputed land, in question, in favour of respondent No. 2, but, insofar as the possession of the said disputed land, in question, was concerned; both the petitioners and respondent No. 2 claimed to be in possession of the said disputed land. It was as a sequel to such a claim made by the petitioners and respondent No. 2 with regard to the possession of the disputed land, in question, that an application u/s. 145 of the Code of Criminal Procedure, 1973, came to be filed by the predecessor-in-interest of the petitioners on 06.12.2017 before the Executive Magistrate, Kamrup Metropolitan District, Guwahati.

When the application u/s. 145 of the Code of Criminal Procedure, 1973, was filed by the petitioners on 06.12.2017, leading to passing of the impugned order, dated 06.11.2020, no civil litigation is found to be pending for the said disputed land, in question, though the said disputed land is stated to have been decreed in favour of respondent No. 2 vide judgment & decree, dated 23.12.2014, passed by the Court of learned AddL. District Judge No. 1, Kamrup, Guwahati, in T.A. 07/2014. Thus, the ratio laid down by the Hon'ble Apex Court in Ram Sumer Puri Mahant(supra), would not be applicable in the facts and circumstances of the instant case inasmuch as at the time of filing of the application u/s. 145 of the Code of Criminal Procedure, 1973, by the petitioners, and the impugned order, dated 06.11.2020, passed by the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, in Case No. 25m/2018, no civil litigation was found to be pending between the parties for the said disputed plot of land, in question, whereas the ratio laid down by the Hon'ble Apex Court in Ram Sumer Puri Mahant(supra), is that a proceeding u/s. 145 of the Code of Criminal Procedure, 1973, would not be justified when a Page No.# 10/15

civil litigation is pending for the same property wherein the question of possession is involved and the parties are in a position to approach the civil Court for interim orders such as injunction, or appointment of receiver, or adequate protection of the property during the pendency of the dispute. Accordingly, the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, vide the impugned order, dated 06.11.2020, in Case No. 25m/2018, could not have dismissed the application filed by the petitioners u/s. 145 of the Code of Criminal Procedure, 1973, as not maintainable by relying on the decision of the Hon'ble Apex Court in Ram Sumer Puri Mahant(supra).

13. When an application u/s. 145 of the Code of Criminal Procedure, 1973, is filed, the manner in which such an application has to be dealt with by the Executive Magistrate, has been explained by this Court in Md. Ansar Uddin v. State of Assam & ors., reported in 2007 SCC Online Gau 93, wherein, in paragraphs No. 3, 9 and 10, it has been held as under:

"3. While considering the present revision, what needs to be borne in mind is that sub-section (1) of section 145, which empowers an Executive Magistrate to draw a proceeding, reads thus: 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 place 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 Page No.# 11/15

respects of the fact of actual possession of the subject of dispute.

9. A close analysis of the provisions of section 145 shows that the Magistrate is empowered to draw a proceeding, under sub-section (1) of section 145, if he is satisfied from 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 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.

10. 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 feel 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 any 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 and different from actions of the individuals, which do not disturb the society to the extent of vibrating a general disturbance Page No.# 12/15

of public order. The breach of peace, envisaged under section 145, Cr. P.C, means disturbance of the even tempo of the life of the community in a given locality. When a party illegally or forcibly occupies land of another party, 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 life of the community. If by such act of dispossession, even tempo of 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. Ordinarily, a person, dispossessed from his land, shall sue for recovery of the immovable properly 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 extraordinary 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, cannot form basis for drawing a proceeding under section 145, Cr. P.C and the forum for obtaining relief, in such a case, is the Civil Court of competent jurisdiction and not the Page No.# 13/15

Executive Magistrate's Court. In Ram Sumer Puri Mahant v. State of U.P . 1985 1 SCC 427 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 the 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."

14. In the instant case, what is noticed from the record is that after an application was filed by the predecessor-in-interest of the petitioners u/s. 145 of the Code of Criminal Procedure, 1973, the respondent No. 2 had filed his written statement on 10.06.2019. In the application filed by the predecessor-in-interest of the petitioners as well as the written statement of respondent No. 2, elaborate pleadings have been made by both the parties stating their own version of the case insofar as the disputed land, in question, is concerned, including the T.S. No. 421/2012 and T.A. 07/2014 preferred by the respondent No. 2 against one Shri Rajib Baruah and others, leading to the passing of the judgment & decree, dated 23.12.2014, by the Court of learned Addl. District Judge No. 1, Kamrup, Guwahati.

15. It is also noticed from the record that in respect of the disputed land, in question, Dispur Police Non-FIR Case No. 06/2018 u/ss. 145/146 of the Code of Criminal Procedure, 1973, dated 26.03.2018, was also registered between the predecessor-in-interest of the petitioners and the respondent No. 2, the police report of which, submitted by the I.O. of the Dispur Police Station, is also made available on record.

16. During the proceeding that took place before the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, it is also noticed that vide Page No.# 14/15

order, dated 21.10.2020, the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, had also ordered for a detailed report from the O/C of the Dispur Police Station in respect of the present status of breach of the peace in the locality of the disputed land, in question. Pursuant thereto, the police report, dated 13.11.2020, have also been submitted to the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati.

17. In the impugned order, dated 06.11.2020, passed by the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, in Case No. 25m/2018, while dismissing the application filed by the predecessor-in- interest of the petitioners as not maintainable, the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, has neither discussed nor taken into consideration the pleadings set-out by the contesting parties or the police report made available on record.

18. As the application filed by the predecessor-in-interest of the petitioners u/s. 145 of the Code of Criminal Procedure, 1973, has been dismissed by the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, as not maintainable solely relying on the decision of the Hon'ble Apex Court in Ram Sumer Puri Mahant(supra) the ratio of which decision has been found to be not applicable in the facts and circumstances of the instant case; I am of the view that the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, while passing the impugned order, dated 06.11.2020, in 25m/2018, has failed to exercise his jurisdiction u/s. 145 of the Code of Criminal Procedure, 1973, as per the mandate of Section 145 of the Code of Criminal Procedure, 1973.

19. It is altogether a different matter as to whether the learned Magistrate, in the facts of the present case, would draw a proceeding u/s. 145 of the Code of Page No.# 15/15

Criminal Procedure, 1973, or not. Whatever the decision of the Magistrate may be, the said decision of the Magistrate ought to be arrived at on the basis of the relevant materials available before him in accordance with the mandate of section 145 of the Code of Criminal Procedure, 1973. Accordingly, I am of the further view that the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, ought to have disposed of the Case No. 25m/2018 by exercising his power and jurisdiction in accordance with the mandate of section 145 of the Code of Criminal Procedure, 1973, by taking into account the relevant facts and materials made available to him, in the manner it has been explained by this Court in Md. Ansar Uddin(supra).

20. For the reasons and discussions made hereinabove; the impugned order, dated 06.11.2020, passed by the Court of the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, in 25m/2018, therefore, is liable to be set aside and it is accordingly hereby set aside and quashed with a further direction to the learned Executive Magistrate, Kamrup Metropolitan District, Guwahati, to dispose of the Case No. 25m/2018, in the light of the decision rendered by this Court in Md. Ansar Uddin(supra).

21. Notwithstanding the above, the parties shall also be at liberty to seek appropriate remedy(ies) before the appropriate forum(s) as may be available to them under the law, in respect of the plot of land, in question.

22. With the above direction and observation, this revision stands allowed and accordingly stands disposed of.

23. Send down the connected LCRs forthwith.

JUDGE Comparing Assistant