Patna High Court
Chhote Lal Yadav @ Chhote Lal And Ors vs The State Of Bihar And Ors on 3 April, 2025
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.19349 of 2016
Arising Out of PS. Case No.- Year-1111 Thana- District-
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1. Chhote Lal Yadav @ Chhote Lal, Son of Late Jangli Gope
2. Jagdish Yadav @ Jagdish Gope, Son of Late Jangli Gope
3. Asaro Devi, Widow of Late Baudhu Gope
4. Krishna Yadav @ Krishna Gope
5. Binod Yadav @ Binod Gope
6. Jugeshwar Yadav,
7. Jugal Yadav, all (petitioner no. 4 to 7) are Sons of Late Baudhu Gope
8. Ram Lakhan Yadav @ Ram Lakhan Gope, Son of Late Baldeo Gope
9. Ramanand Yadav @ Ramanand Gope, Son of Late Baldeo Gope, All
Residents of Village/P.S.- Harnaut, District- Nalanda
... ... Petitioner/s
Versus
1. The State of Bihar
2. Ran Bijay Prasad, Son of Kameshwar Singh, Resident of Village- Ganga
Bigha, P.S.- Chandi, Distt. Nalanda
3. Raj Kumar Prasad, Son of Indradeo Prasad, Resident of Village- Khoja
Etwarsarai, P.S.- Rahui, District- Nalanda
4. Laxmi Kant Prasad Singh @ Brijnandan Prasad, Son of Awadhesh Bihari
Singh, Resident of Village- Ganga Bigha, P.S.- Chandi, District- Nalanda
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sidhendra Narayan Singh, Advocate
Mr. Kumar Lalit, Advocate
For the O.P. No.2 to 4 : Mr. Prem Chand Yadav, Advocate
For the State : Mr. Binod Kumar No.3, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
Date : 03-04-2025
The instant petition has been filed under Section 482
of the Code of Criminal Procedure ( in short 'Cr.P.C.') with a
prayer to quash the order dated 01.02.2016 passed by learned 6 th
Additional Sessions Judge, Nalanda at Biharsharif in Cr. Rev.
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
2/12
No. 519 of 1993 whereby and whereunder the order dated
02.12.1993
passed under Section 145 of Cr.P.C. declaring the
possession of Second Party (Opposite Parties) over the land in
question by the Executive Magistrate, Nalanda at Biharsharif in
the Case No. 804(M.P.)/1993 has been affirmed by dismissing
the revision application preferred by the petitioners (first party).
2. Mr. Sidhendra Narayan Singh, learned counsel
appearing for the petitioners who were first party before the
court of Executive Magistrate in the Case No. 804 (M.P.)/1993
submits that the learned Executive Magistrate in his order dated
02.12.1993 not only declared the possession but also declared
the title of the second party, who are here Opposite Parties in the
proceeding initiated under section 145 of Cr.P.C. which is
wholly without jurisdiction and in this regard, the findings
given by the learned Executive Magistrate in his order dated
02.12.1993, may be perused. The petitioners (first party)
initially preferred Cr. Rev. No. 519 of 1993 on 16.12.1993
making all three second parties as opposite party and the
revisional court set aside the order dated 02.12.1993 in that
revision of which order's copy has been filed as Annexure-3
holding therein that the order dated 02.12.1993 was wholly
without jurisdiction. Though the original order passed under
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
Section 145 of Cr.P.C. was in the favour of all the three second
parties and the revisional court's order dated 04.08.2009 was
against all of them but out of them, only two second parties
(Opposite Parties) namely, Ran Bijay Prasad and Raj Kumar
Prasad had challenged that revisional court's order before this
Court without making the third Opposite party namely, Laxmi
Kant Prasad as a party in Criminal Revision No. 459 of 2010
due to which it can be deemed that the order dated 04.08.2009
of the revisional court attained finality so far as in favour of the
first parties as against the O.P. No. 4, namely, Laxmi Kant
Prasad Singh and the Cr. Rev. No. 459 of 2010 was not
maintainable due to non-joinder of the necessary party (O.P.
No.4), however, that revision was dismissed on 20.01.2013 for
want of prosecution but the same was restored vide order dated
25.10.2013 but without any notice or information to the
petitioners who were opposite parties in that revision petition
and thereafter, the matter was remanded back on technical
ground for afresh decision mainly considering that the
documents filed by the first parties (petitioners) did not contain
exhibit numbers and in this regard, the order dated 25.10.2013
filed as Annexure-5 may be perused and further, when the
matter was again heard by the revisional court, the case record
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
of Executive Magistrate's court was not available before the
revisional court as all the exhibit documents as well as File-A
and File-B of the said case record had been eaten by termite
(deemak) and the same were in torn condition and in this regard,
Annexure-7, a letter, sent to the revisional court by the
concerned court may be perused which shows that the revisional
court passed the impugned order in the absence of the evidences
adduced by both the sides before the court of Executive
Magistrate. He further submits that the original order dated
02.12.1993 clearly goes to show that the documents filed by the
first party/petitioners were not properly considered and
exhibited which shows the prejudicial approach of the said
court. He further submits that from the first paragraph of the
original order dated 02.12.1993, it is clearly evident that in
between both the parties there was a dispute of title and
possession over the land in question during the relevant period
of time which cannot be decided by an Executive Magistrate
while exercising his power under Section 145 of Cr.P.C. and in
this regard, the principle laid down by this Court in the case of
Dilip Poddar vs. State of Bihar & Ors. reported in 2001 (3)
PLJR 471 is relevant. He lastly submits that the initiation of the
proceeding under Section 145 of Cr.P.C. in respect of the
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
disputed land by the Executive Magistrate was completely
without jurisdiction as over the disputed land there were
residential structure as well as commercial shops and in this
regard, the evidence of the witnesses produced and examined by
the second party before the court of learned Executive
Magistrate which has been discussed in the original order dated
02.12.1993, may be perused. In support of this submission
learned counsel has referred to the judgment of this Court
passed in the case of Dilip Poddar (supra) and also placed
reliance on the judgment of this Court passed in the case of
Netlal Rai vs. State of Bihar reported in 2017 (4) PLJR 606
and the relevant paragraph nos. 6 and 7 upon which reliance has
been placed, are being reproduced as under :-
" 6. It is not in dispute that over the
land in dispute, the residential house is
situated. In the case of Dilip Poddar vs. State
of Bihar, Amod Kumar and Ors. {2001(3)
PLJR 471}, a Bench of this Court considered
the similar matter and held in paragraphs-4
and 5 as under:--
"4. After hearing learned counsel of both
the parties and on consideration of all materials it
could be found that practically the fight is in between
the parties regarding right of possession and the right
to title over the property in question which definitely
cannot be decided by a criminal court. The property in
question is residential house and it is beyond the
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
power of the Executive Magistrate to decide the
possession or otherwise. In that view of the matter,
while passing the order of withdrawal of attachment
order, the learned Executive Magistrate ought to have
passed order dropping the proceeding as
contemplated under Section 145 Cr.P.C. directing the
parties to seek their grievances before the appropriate
court.
5. Considering all aspects of the matter,
in my considered view, the proceeding under Section
145 Cr.P.C. over a residential house was misconceived
one on the face of it and the same ought to have been
brought by the learned Magistrate while withdrawing
the order passed under section 146(1) Cr.P.C. Be that
as it may, without going into such details I hold that it
was a fit case where whole of the proceeding under
Section 145 Cr.P.C. ought to have been dropped and it
is accordingly dropped. However, any observation
made by the Executive Magistrate in respect of
possession over the house in question of the parties
shall not be binding on any of the parties in any other
forum while seeking redressal by the aggrieved party."
7. Admittedly, over the land in
dispute, the house is situated, as such, the right
and title in respect to the land in dispute could
only be decided by the competent civil court
and the proceeding under Section 145 of the
Code of Criminal Procedure, is beyond the
power of Executive Magistrate."
3. Per contra, Mr. Prem Chand Yadav, learned counsel
appearing for the O.P. No.2 to 4 argued that as per Section
145(2) of Cr.P.C. the expression "Land or Water" mentioned in
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
sub-Section (1) of Section 145 of Cr.P.C. includes buildings,
markets, fisheries, crops or other produce of land, so, if on some
part of the disputed land there was a building either in the form
of residential house or shop then merely by this fact, the
jurisdiction conferred upon an Executive Magistrate by virtue of
Section 145 of Cr.P.C. does not oust, while in the instant matter,
the area of the disputed land is 23 dismil and the alleged huts
and shops do not cover the entire land and only a little portion
of the said land was covered by the said buildings when the
proceeding under Section 145 of Cr.P.C. was initiated. He
further submits that the proceeding under Section 145 of Cr.P.C.
was initiated in the year 1987 and the original order in the said
proceeding was passed on 02.12.1993 and the actions under
Section 145 of Cr.P.C. are in the nature of emergency to prevent
the possibility of breach of peace and the proceeding under the
said Section initiated in the present matter must be treated to be
closed on account of the lapse of considerable period from the
date of its inception, so, after the lapse of more than 30 years
from the inception of the proceeding under Section 145 of
Cr.P.C., there is no need to decide the legality of the initiation of
the said proceeding as well as the merit of the original order as
the purpose to initiate the said proceeding has already been
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
served and all the litigations relating to the said proceeding must
be treated as being closed and in this regard, the observation
made by the Hon'ble Division Bench of this Court in the
judgment passed in the case of Ram Chandra Rai & Ors. vs.
The State of Bihar & Ors. reported in 1991 (1) PLJR 36 is
relevant.
4. Heard both the sides, perused the impugned order
and the order dated 02.12.1993 passed under Section 145 of
Cr.P.C. by the concerned Executive Magistrate and also gone
through the other relevant materials which are available before
this Court. In the instant matter, the preventive proceeding was
initially initiated under Section 144 of Cr.P.C. against both the
parties and the same was later on converted into 145 of Cr.P.C.
Before the Executive Magistrate both the parties filed their
respective written statements and also examined their witnesses
in oral evidence. Though the learned Executive Magistrate did
not give the details of exhibit numbers concerned to the
documentary evidence adduced by the first party in his order
and merely on that ground, the Cr. Rev. No. 459 of 2010
preferred by the second party against the order dated
02.12.1993, was remanded back to the trial court with a
direction to proceed afresh and thereafter, the impugned order
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
dated 01.02.2016 was passed by the revisional court by which
the revision petition preferred by the petitioners was dismissed.
The proceeding under Section 145 of Cr.P.C. is not considered
to be akin to the proceeding of trial and an omission as to not
mentioning the exhibits number of one party in the order of
such proceeding does not vitiate such proceeding if other
evidences discussed in such order are sufficient to justify the
conclusion of the Executive Magistrate. In the order dated
02.12.1993, the learned Executive Magistrate discussed all the
oral evidences of both the parties in elaborate manner and also
gave reference of the documents adduced by the petitioners,
though the LCR concerned to the Case No. 804 of 1993 having
the written statements of both the parties and their evidences,
was produced in torn condition before the revisional court in
which most of the documents were found to have been eaten by
termite but however, in the order of Executive Magistrate all the
evidences adduced by both the parties have been discussed
elaborately and the same is sufficient for this Court to make a
conclusion with regard to the main elements which are to be
looked into while finding the justification of the initiation of
preventive proceeding under Section 145 of Cr.P.C and also for
finding out whether the conclusion of the Executive Magistrate
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
is proper or not. It is an admitted position that at the relevant
time of the initiation of the preventive proceeding under Section
145 of Cr.P.C. there was a dispute in between both the parties
which arose an apprehension of the likelihood of the breach of
peace and in this regard, the written statements filed by both the
parties discussed in the order of Executive Magistrate in itself
are sufficient. In the proceeding under Section 145 of Cr.P.C. the
Executive Magistrate is restricted to make an enquiry only to
find out the actual preliminary possession of the parties over
the disputed subject matter and the question of title as well as
rightful possession is not to be decided and not required to be
looked into by the Executive Magistrate. On behalf of the first
party/petitioners, six witnesses were examined in the proceeding
under Section 145 of Cr.P.C. out of them, two were not the
resident of Harnaut village where the disputed land is situated
and three witnesses were members of the first party and the
sixth witness was not an independent person as observed by the
Executive Magistrate and due to this reason, the evidence given
by them was not considered by the learned Magistrate to be
sufficient to substantiate the plea of the first party as to their
possession being over the disputed land at the relevant time.
While on the other hand, on behalf of the second party, six
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
persons were examined, out of them some are stated to be
independent persons and they supported the factum of
possession of the second party over the disputed land at the
relevant time and their evidence is sufficient to prove the
preliminary possession of the second party over the disputed
land at the time when the proceeding under Section 145 was
initiated against both the parties. Though in the light of the
evidence of witnesses of both the parties, it appears that over the
disputed land, some buildings were existing when the
proceeding under Section 145 of Cr.P.C. was initiated but there
is no material to show that over the entire disputed land such
buildings were existing, however, the expression " Land "
mentioned in Section 145 (2) of Cr.P.C., includes buildings or
markets and the main conditions to initiate a proceeding under
Section 145 of Cr.P.C. are that there must be a dispute relating
to land or water or its boundaries owing to which there is a
likelihood of the breach of peace and both the said conditions
are fulfilled in the present matter. Though in the order dated
30.11.1993, the learned Executive Magistrate took into account
the title of both the parties to some extent but in the operative
portion of the said order confined himself to the possession of
both the parties over the subject matter and gave his conclusion
Patna High Court CR. MISC. No.19349 of 2016 dt.03-04-2025
to the extent of possession of both the parties. Accordingly, this
Court finds the order dated 01.02.2016 passed by the revisional
court in the Cr. Rev. No. 519 of 1993 affirming the Executive
Magistrate's order dated 02.12.1993 to be proper and there is no
illegality in the same which has been passed by revisional court
after having taken into account all the relevant materials, as
such, this Court finds no force in this petition, so, it stands
dismissed.
(Shailendra Singh, J)
maynaz/-
AFR/NAFR AFR
CAV DATE 18.03.2025
Uploading Date 04.04.2025
Transmission Date 04.04.2025
