Raj Kumar Prasad Singh vs State Of Bihar And Anr
2024 Latest Caselaw 781 Patna

Patna High Court

Raj Kumar Prasad Singh vs State Of Bihar And Anr on 1 February, 2024

Author: Jitendra Kumar

Bench: Jitendra Kumar

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.37021 of 2016
                      Arising Out of PS. Case No.- Year-1111 Thana- District-
     ======================================================
     Raj Kumar Prasad Singh son of Ram Lakhan Prasad Singh, resident of
     Village- Hasanpur, Police Station- Bahadurpur, Dist- Darbhanga at permanent
     resident of Village- Shekhpura, Karnauti, Police Station- Mahnar, District-
     Vaishali.

                                                                           ... ... Petitioner/s
                                             Versus
1.   The State Of Bihar
2.   Harsh Kumar Prasad Singh son of Krishna Mohan Prasad Singh, resident of
     Village- Hasanpur, Police Station- Bahadurpur, Distt.- Darbhanga at
     permanent resident of Village- Shekhpura, Karnauti, Police Station- Mahnar,
     District- Vaishali.

                                            ... ... Opposite Party/s
     ======================================================
     Appearance :
     For the Petitioner/s     :         Mr. Ranjeet Kumar, Advocate
     For the State            :         Mr. Upendra Kumar, APP
     For the O.P. No.2        :         Mr. Girijish Kumar, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
     ORAL JUDGMENT
      Date : 01-02-2024

                       The present petition under Section 482 Cr.P.C. has

      been filed by the petitioner impugning the order dated

      17.05.2016

passed by Ld. Additional Sessions Judge-II,

Darbhanga in Cr. Revision Case No. 547 of 2015 and order

dated 17.07.2015 passed by Ld. Sub-Divisional Magistrate,

Sadar, Darbhanga in M.R. Case No. 1251 of 2015.

2. The proceeding before the Ld. Sub-Divisional

Magistrate, Sadar, Darbhanga under Section 144 Cr.P.C. was

initiated on the report of Officer-in-charge, Sonki O.P. bearing

D.R. No. 183A of 2015, whereby Officer-in-charge had reported Patna High Court CR. MISC. No.37021 of 2016 dt.01-02-2024

that in regard of the land as mentioned below situated in Mouza-

Hasanpur, Thana No.- 651, Police Station- Bahadarpur Sonki

O.P., District- Darbhanga, there is dispute between Harsh

Kumar Prasad Singh and Raj Kumar Prasad Singh as well as

Nand Kumar Prasad on account of dispute regarding title and

possession of the landed property bearing Khata No. 136,

Khesra No. 168(N)/331, 332(O), 170(N)/333, 334(O),

172(N)/330(O), 339(N)/323,324(O), measuring area 60 decimal,

27 decimal, 78 decimal and 43 Acre 16 decimal respectively.

Officer-in-charge had reported that on account of claim and

counter claim to the land in question, there is apprehension of

breach of piece. In view of the aforesaid report of Officer-in-

charge, Ld. Sub-Divisional Magistrate, Sadar, Darbhanga

converted the proceeding under Section 144 Cr.P.C. into

proceeding under Section 145 Cr.P.C. holding that in view of the

facts and circumstances of the case, it appears that there is

possibility of breach of peace and, hence, for permanent

solution of the dispute, proceeding under Section 145 Cr.P.C. is

required to be initiated. Against the aforesaid order dated

17.07.2015 passed by Ld. Sub-Divisional Magistrate, Sadar,

Darbhanga, the petitioner herein preferred Cr. Revision bearing

No. 547 of 2015. However after hearing both the parties, Ld. Patna High Court CR. MISC. No.37021 of 2016 dt.01-02-2024

Additional Sessions Judge-II, Darbhanga upheld the order dated

17.07.2015 passed by Ld. Sub-Divisional Magistrate, Sadar,

Darbhanga. Being aggrieved by the aforesaid orders, the

petitioner has preferred the present petition.

3. Ld. Counsel for the petitioner submits that the

land in questions is in possession of the petitioner. This land has

come in the share of the petitioner after partition in the family.

He further submits that even otherwise there is no occasion for

initiating proceeding under Section 145 Cr.P.C. because this

extraordinary jurisdiction under Section 145 Cr.P.C. can be

initiated only in circumstances of apprehension of breach of

public peace on account of forceful dispossession of the landed

property. But even the report of the police or the impugned

order passed by Ld. Sub-Divisional Magistrate, Sadar,

Darbhanga, do not disclose any such circumstances which may

lead to apprehension of breach of public peace on account of

forceful dispossession of the property. At most, there is purely a

private civil dispute between the parties for resolution of which

they can move Civil Court and even get interim appropriate

order during the pendency of the suit. But Ld. Sub-Divisional

Magistrate, Sadar, Darbhanga has no jurisdiction to initiate the

proceeding under Section 145 Cr.P.C. in the given facts and Patna High Court CR. MISC. No.37021 of 2016 dt.01-02-2024

circumstances of the case and hence, it is liable to be quashed.

Ld. counsel for the petitioner also refers to and relies upon

Yugal Kishore Choudhary v. State of Bihar as decided by this

Court and as reported in 2023 (6) BLJ 360.

4. However, Ld. APP for the State defends the

orders of the Ld. Sub-Divisional Magistrate as well as Ld.

Additional Sessions Judge-II, Darbhanga.

5. Ld. counsel for the O.P. No.2 also vehemently

supports the impugned orders passed by Ld. Sub-Divisional

Magistrate and Ld. Additional Sessions Judge-II, Darbhanga

submitting that the O.P. No.2 is in possession of the property in

question. However, the petitioner herein is forcibly trying to

dispossess him and harvest the standing crop on the land.

6. This Court in Yugal Kishore Choudhary (supra)

has elaborately discussed the scope and extent of jurisdiction

under Section 145 CrPC. In this case, this Court has held as

follows:-

"9. Section 145 Cr. P.C. is the part of Chapter X of the Code of Criminal Procedure, 1973 dealing with maintenance of public order and tranquility. Section 145 Cr. P.C. is the part of Sub Chapter D dealing with disputes as to immovable property. Besides Section 145 Cr.P.C., Section 146, 147 and 148 Cr. P.C. are also part of Sub Chapter D of Chapter X of Cr. P.C. It is found that disputes over the land and water often results in breach of the peace, violence and bloodshed, the Executive Magistrates have been empowered under Section 145-148 to intervene at an incipient stage of such a dispute and to compel the disputants to have recourse to legal remedies. If, upon a report of a police officer or upon other information, an Patna High Court CR. MISC. No.37021 of 2016 dt.01-02-2024

Executive Magistrate is satisfied that a dispute concerning any land or water or the boundaries thereof exists within his jurisdiction, and that such dispute is likely to cause a breach of the peace, he shall make an order in writing requiring the parties concerned in such dispute to attend to his court on a specified date and time, and to put in written statements of their claims regarding the fact of actual possession of the subject of dispute. While making such order, the Magistrate shall state the grounds for his satisfaction referred to above. The very foundation of the jurisdiction of a Magistrate in cases under Section 145 is based on the existence of a dispute giving rise to apprehension of breach of peace and as soon as such apprehension ceases to exist or if it never existed, the jurisdiction of the Magistrate to proceed with the case ceases and the only order he has to pass is to drop the proceedings. The enquiry under Section 145(4) is limited to the question of actual possession on the relevant date and is not concerned with the claims and merits of the parties in regard to the right to possess the subject of dispute. If the magistrate decides that one of the parties was in 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."

7. After referring to various case laws, this Court in

Yugal Kishore Choudhary (supra), has further held as follows:-

"53. As such, it emerges from the statutory provisions of Section 145 Cr. P.C. and relevant case laws on the subject that mandate of Section 145 Cr.P.C. is that in case taking forceful possession of any property by either party leads to apprehension of breach of public peace, proceeding under Section 145 Cr. P.C should be initiated and the possession of property of the party should be protected against forceful dispossession by other party taking law in his own hand. It also manifests that apprehension of breach of public peace is sine qua non for invoking jurisdiction under Section 145 Cr. P.C. by Executive Magistrates. It is also pertinent to point out that concept of public peace and tranquility is much wider concept than that of simple problem of law and order. All law and order problems cannot be equated with breach of public peace unless it affects the public at large, like riot, affray or widespread unrest. Simple disputes between two individuals involving violation of penal laws on the part of the two cannot be termed as breach of public peace. Similarly, purely civil dispute between two individuals also cannot be treated as breach of public peace. For resolution of civil disputes between parties, there is establishment of Civil Courts in our legal framework, whereas in case of violation of criminal law, there is provision Patna High Court CR. MISC. No.37021 of 2016 dt.01-02-2024

of prosecution of such persons in criminal courts. Occasion for invoking jurisdiction under Section 145 Cr. P.C. comes to Executive Magistrate only where there is apprehension of breach of public peace and tranquility so that such breach may be nipped in the bud. However, on the pretext of apprehension of breach of public peace, Executive Magistrate is not expected to exercise jurisdiction of Civil or Criminal Courts. Such colourable exercise of jurisdiction would be against the object and spirit of Section 145 Cr. P.C. and it would render Civil and Criminal Courts irrelevant and the people would get harassed by illegal and unnecessary proceedings. In our legal framework, power and jurisdiction are defined for different instrumentalities of the State and no instrumentality is expected to exceed its jurisdiction and encroach upon that of others."

8. Coming to the case at hand, I find that the

dispute between the parties in regard to the title and possession

over the land in question. Moreover there is no reference to any

forceful dispossession in the report of the police, not in the

ordersheet of the Ld. Sub-Divisional Magistrate whereby he has

initiated proceeding under Section 145 Cr.P.C. There is bald

statement of Ld. Sub-Divisional Magistrate that in view of

dispute between the parties, there is possibility of breach of

peace and to resolve the dispute permanently, initiation of

proceeding under Section 145 Cr.P.C. is required. No basis has

been disclosed by the Ld. Sub-Divisional Magistrate how there

is apprehension of breach of peace. The alleged facts and

circumstances clearly shows that this is a classic case of civil

dispute between the parties and it is the only Civil Court, which

have jurisdiction to deal with the issue. In case of requirement

of any interim relief, the parties can pray for interim measures.

Patna High Court CR. MISC. No.37021 of 2016 dt.01-02-2024

There is no occasion to resort to jurisdiction under Section 145

Cr.P.C. by Ld. Sub-Divisional Magistrate. This is colorable

exercise of power by Ld. Sub-Divisional Magistrate usurping

the jurisdiction of Civil Court, which cannot be permitted.

9. As such, the impugned order dated 17.05.2016

passed by Ld. Additional Sessions Judge-II, Darbhanga in Cr.

Revision Case No. 547 of 2015 and order dated 17.07.2015

passed by Ld. Sub-Divisional Magistrate, Sadar, Darbhanga in

M. R. Case No. 1251 of 2015 are liable to be quashed and

accordingly, they are hereby quashed.

10. The present petition is allowed, accordingly.

(Jitendra Kumar, J.) ravishankar/-

AFR/NAFR                AFR
CAV DATE                N.A.
Uploading Date          02.02.2024
Transmission Date       02.02.2024