Patna High Court
Ram Padarath Singh And Ors vs State Of Bihar And Anr on 28 January, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.41314 of 2016
Arising Out of PS. Case No.- Year-1111 Thana- District-
======================================================
1. Ram Padarath Singh Son of Late Bansi Singh
2. Sri Kant Singh Son of Sri Ram Padarath Singh
3. Ganesh Singh Son of Sri Ram Padarath Singh
4. Sanjay Kumar @ Sanjay Singh Son of Sri Ram Padarath Singh
5. Aditya Singh Son of Sri Ram Padarath Singh
All residents of village - Kajhiya, Police Station- Akbarpur, in the district of
Nawada
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Sarojani Devi Wife of Sri Jay Nandan Prasad Singh, resident of village -
Kajhiya, Police Station Akbarpur, in the district of Nawada
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
Mr. Jay Prakash Singh, Advocate
For the State : Mr. Sanjay Kumar Pandey, APP
For the O.P. No.2 : Mr. P. N. Shahi, Sr. Advocate
Mr. Manish Kumar No.2, Advocate
Mr. Aryan Singh, Advocate
Mr. Ram Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 28-01-2025
The present petition, under Section 482 Cr.PC, has
been preferred by the petitioners against the impugned order
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
2/23
dated 16.05.2016, passed by learned Additional Sessions Judge-
III, Nawada in Criminal Revision No. 44 of 2015 / 16 of 2016,
whereby learned Sessions Court had dismissed the revision
petition finding no illegality in the order dated 27.10.2014
passed by learned Sub-Divisional Magistrate, Rajauli, District-
Nawada in proceeding bearing No. 1M of 2014, whereby
learned Executive Magistrate has attached the subject landed
property.
2. The factual background of this case is that the
opposite party No.2 herein, Sarojani Devi, filed one petition
bearing Proceeding No. 50M of 2013 before learned Sub
Divisional Magistrate for initiating proceeding under Section
144 Cr.PC and thereupon, the proceeding under Section 144
Cr.PC was initiated. However, after hearing both the parties,
learned Executive Magistrate closed the proceeding under
Section 144 Cr.PC and advised the parties to prefer Title Suit
before Civil Court, if so advised.
3. Subsequently, the said Sarojani Devi filed one
petition under Section 145 Cr.PC, before learned Sub-Divisional
Magistrate on 07.12.2013 against the petitioners herein in regard
to landed property measuring 1 Acre 37 decimal bearing Khata
No. 135 and Plot No. 1544, 1546, 1546/2249, alleging that the
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3/23
petitioners herein were bent upon to forcibly dispossess her
which might lead to breach of peace. In pursuance of this
petition, learned Executive Magistrate called for report from
Officer-in-charge and Circle Officer within a week.
Subsequently, Circle Officer submitted his report stating that the
purchasers of the lands are in possession, but there is dispute
among the parties in regard to title to the property. However, he
reported that on account of the dispute, there is apprehension of
breach of peace.
4. On the basis of the said report of the circle officer,
learned Executive Magistrate passed the impugned order dated
28.01.2014
, initiating proceeding under Section 145 Cr.PC
observing that on the basis of the report of the Circle Officer,
there is dispute between the parties in regard to possession
which may lead to breach of peace. The parties were also
directed to be informed about the proceeding.
5. Later on, the O.P. No.2 herein, Sarojani Devi,
moved an application dated 22.10.2014 before learned
Executive Magistrate for attachment of the subject landed
property, stating that paddy crop is standing on the land and the
petitioners herein were bent upon to harvest the same, which
may lead to bloody occurrence. Subsequently, learned Executive
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
Magistrate passed the impugned order dated 27.10.2014,
attaching the subject landed property under Section 146(1)
Cr.PC and appointing the Officer-in-charge of the local Police
Station as the receiver, observing that from perusal of the
application, it appeared that there was tension between the
parties and the possibility of breach of peace could not be ruled
out. He also observed in the impugned order that there was
confusion regarding the possession over the land and there was
possibility of breach of public peace.
6. The order of attachment dated 27.10.2014 was
challenged by the petitioners herein in Criminal Revision
bearing No. 44 of 2015/ 16 of 2016 before Sessions Court.
However, Revision petition was dismissed and the order of
attachment was upheld. Hence, the present petition.
7. It also transpires from the record that Sarojani Devi,
O.P. No. 2 herein, has also filed one Civil Suit bearing Title Suit
No. 05 of 2014 in the Court of learned Sub Judge-I, Nawada on
02.01.2014 for confirmation of the possession of the subject
landed property in regard to 28½ decimal of the land bearing
Khata No. 135 and Plot No. 1544, 1546, 1546/2249, which is
pending consideration of the Court.
8. I heard learned counsel for the petitioners, learned
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
APP for the State and learned Senior counsel for the Opposite
Party No.2.
9. Learned counsel for the petitioners submits that the
impugned orders are not sustainable in the eye of law. To
substantiate his submission, he further submits that on the basis
of the alleged facts and circumstances of the case, initiation of
proceeding under Section 145 Cr.PC was not warranted. Hence,
the initiation of proceeding under Section 145 Cr.PC itself is
vitiated for want of foundational facts and circumstances for
initiating the proceeding. Executive Magistrate assumes
jurisdiction under Section 145 Cr.PC only when there is dispute
regarding actual possession and there is an attempt to forcibly
dispossess the party in possession. But as per the report of the
Circle Officer, purchasers of the land are already in possession,
though there is rival claim regarding right and title to the
property and right to possession thereof. Hence, such dispute
does not come within the purview of Section 145 Cr.PC. It is
subject of the jurisdiction of Civil Court and O.P. No.2, Sarojni
Devi has already filed a civil suit in regard to title to the
property and right to possession thereof.
10. He further submits that as per the alleged facts and
circumstances, there is no apprehension of breach of public
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
peace and tranquility. At most, it is private dispute involving
parties to the dispute. No public at large are affected by or
involved in the dispute. Moreover, the dispute is in regard to the
title to the property and right to possession thereof which is
subject matter of Civil Court and not that of Executive
Magistrate under Section145 Cr.PC.
11. He further submits that Civil Suit is already
pending between the parties regarding title and right to
possession in regard to the property and parallel proceeding
under Section 145 Cr.PC and attachment of the subject property
is unwarranted and not sustainable in the eye of law. Both the
proceedings cannot go simultaneously.
12. He further submits that emergent situation is sine
qua non for attachment of the subject landed property under
Section 146(1) Cr.PC and learned Executive Magistrate is
required to state the facts which show that there is emergent
situation requiring attachment of the subject landed property.
However, there is no such details of the material facts and
circumstances in the impugned order of learned Executive
Magistrate to show that there was emergent situation.
13. However, learned APP for the State and learned
Senior counsel for the O.P. No. 2 defend the impugned order
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
submitting that there is no illegality or infirmity in it and hence,
the present petition is liable to be dismissed.
14. Learned senior counsel for the O.P. No. 2 further
submits that Civil Suit pending before the Civil Court is in
regard to only small part of the land which is subject matter of
the proceeding under Section 145 Cr.PC.
15. He further submits that as per the allegation, on
account of dispute regarding title and possession, there is
apprehension of breach of public peace. Hence, the proceeding
pending before the learned Magistrate is maintainable and there
is no infirmity in the impugned order.
16. I considered the rival submissions of the parties
and perused the materials on record.
17. Here, the question to be considered by this Court
is whether the attachment of the subject landed property under
Section 146(1) is sustainable in the eye of law or not? Section
146 Cr.PC reads as follows:-
"146. Power to attach subject of dispute and to appoint
receiver.--(1) If the Magistrate at any time after making
the order under sub-section (1) of section 145 considers
the case to be one of emergency, or if he decides that none
of the parties was then in such possession as is referred to
in section 145, or if he is unable to satisfy himself as to
which of them was then in such possession of the subject
of dispute, he may attach the subject of dispute until a
competent Court has determined the rights of the parties
thereto with regard to the person entitled to the possession
thereof:
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
Provided that such Magistrate may withdraw the
attachment at any time if he is satisfied that there is no
longer any likelihood of breach of the peace with regard to
the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he
may, if no receiver in relation to such subject of dispute
has been appointed by any Civil Court, make such
arrangements as he considers proper for looking after the
property or if he thinks fit, appoint a receiver thereof, who
shall have, subject to the control of the Magistrate, all the
powers of a receiver appointed under the Code of Civil
Procedure, 1908;
Provided that in the event of a receiver being subsequently
appointed in relation to the subject of dispute by any Civil
Court, the Magistrate--
(a) shall order the receiver appointed by him to hand over
the possession of the subject of dispute to the receiver
appointed by the Civil Court and shall thereafter discharge
the receiver appointed by him;
(b) may make such other incidental or consequential
orders as may be just."
(Emphasis supplied)
18. It clearly emerges that after making preliminary
order under Section 145(1) Cr.PC, the Executive Magistrate can
attach the subject property in the following three situations as
per Section 146(1) Cr.PC:
(i) If he considers the case to be one of emergency, or
(ii) If he decides as per the inquiry that none of the
parties was in possession of the subject property in terms of
Section 145 Cr.PC, or
(iii) If he is unable to satisfy himself as to which of
the parties then in possession of the dispute.
19. Here, it would be also pertinent to point out that
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
the case of emergency as contemplated under Section 146(1)
Cr.PC connotes much more than mere apprehension of breach of
peace. When breach of peace appears to be imminent, only then
the situation could be termed as "emergency". Moreover, the
Executive Magistrate is required to refer to the material facts
and circumstances in his order showing emergent situation so
that the higher court could independently assess the situation
and test objectively whether the Executive Magistrate has
applied his judicial mind for recording his satisfaction. In this
regard, one may also refer to the following judicial precedents:
(i) Ram Swarup Prasad Vs. State of Bihar
2008 (3) PLJR 604
(ii) Chandra Saxena Vs. VI Additional Sessions Judge
1998 Cri.L.J. 3794
(iii) Amrit Singh Vs. Gyandeo Sharma
1978 Cri.L.J. 671
20. It also transpires from Section 146(1) Cr.PC that
such attachment of the dispute continues till a competent Court
determines who has right and title to the property and right to
possession thereof. However, the Executive Magistrate is also
empowered to withdraw the attachment at any time, if he is
satisfied that there is no longer any likelihood of breach of
peace with regard to the subject of dispute.
21. Sub-Section (2) of Section 146 provides that if no
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
receiver in relation to the subject of the dispute has been already
appointed by any Civil Court, he may make arrangement as he
considers appropriate for looking after the property or he may
appoint a receiver thereof, subject to his control. However, if
receiver is appointed subsequently by Civil Court, the
Magistrate is required to order the receiver so appointed by him
to handover the possession of subject of the dispute to the
receiver as appointed by Civil Court, discharging the receiver
appointed by him.
22. The bare reading of Section 146(1) Cr.PC shows
that order under Section 146 Cr.PC passed by learned Executive
Magistrate is dependent upon the preliminary order passed
under Section 145(1) Cr.PC. Hence, defects in the preliminary
order passed under Section 145(1) Cr.PC would make a
subsequent proceeding including the order passed under Section
146(1) Cr.PC without jurisdiction and erroneous in law. [Also
refer to Shrikant Prasad @ Chirkut Sah Vs. The State of
Bihar (2013) 3 PLJR 392]
23. Now, question is what is the extent and scope of
jurisdiction of Executive Magistrate under Section 145 Cr.PC.
Section 145 Cr.PC reads as follows:-
"145. Procedure where dispute concerning
land or water is likely to cause breach of peace.- (1)
Whenever an Executive Magistrate is satisfied from a
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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.
(2) For the purposes of this section, the
expression "land or water" includes buildings, markets,
fisheries, crops or other produce of land and the rents or
profits of any such property.
(3) A copy of the order shall be served in the
manner provided by this Code for the service of a
summons upon such person or persons as the Magistrate
may direct, and at least one copy shall be published by
being affixed to some conspicuous place at or near the
subject of dispute.
(4) The Magistrate shall then, without reference
of 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 any
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 if that party had been in
possession on the date of this order under sub-section (1).
(5) Nothing in this section shall preclude any
party so required to attend, or any other person interested,
from showing that no such dispute as aforesaid exists or
has existed; and in such case the Magistrate shall cancel
his said order, and all further proceedings thereon shall be
stayed, but subject to such cancellation, the order of the
Magistrate under sub-section (1) shall be final.
(6) (a) If the Magistrate decides that one of the
parties was, or should under the proviso to sub-section (4)
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
be treated as being, in such 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; and when he proceeds under the
proviso to sub-section (4), may restore to possession the
party forcibly and wrongfully dispossessed.
(b) The order made under this sub-section shall
be served and published in the manner laid down in sub-
section (3).
(7) When any party to any such proceeding
dies, the Magistrate may cause the legal representative of
the deceased party to be made a party to the proceeding
and shall thereupon continue the inquiry, and if any
question arises as to who the legal representative of a
deceased party for the purposes of such proceeding is, all
persons claiming to be representatives of the deceased
party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop
or other produce of the property, the subject of dispute in a
proceeding under this section pending before him, is
subject to speedy and natural decay, he may make an order
for the proper custody or sale of such property, and, upon
the completion of the inquiry, shall make such order for
the disposal of such property, or the sale-proceeds thereof,
as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any
stage of the proceedings under this section, on the
application of either party, issue a summons to any witness
directing him to attend or to produce any document or
thing.
(10) Nothing in this section shall be deemed to
be in derogation of the powers of the Magistrate to
proceed under section 107."
(Emphasis supplied)
24. Section 145 Cr.PC comes under Chapter X of
Cr.PC, 1973, dealing with maintenance of public order and
tranquility and Sections 145 to 148 Cr.PC deal with dispute as to
immovable property.
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
25. From the perusal of Sections 145 to 148 Cr.PC, it
clearly transpires that the statutory provisions therein are meant
to maintain public order and peace by empowering the
Executive Magistrate to take preventive measures in case of
apprehension of breach of public peace on account of dispute as
to actual possession of the land or water. When the Executive
Magistrate is satisfied from the report of Police Officer or any
other information that such dispute is likely to cause a breach of
peace, he can initiate proceeding under Section 145(1) Cr.PC,
stating the ground of such satisfaction and take steps to hear the
parties concerned in regard to the actual possession of the
subject of the dispute. However, during such hearing, the
Magistrate is not required to examine title or right of any party
to possess the subject of the dispute, but only to find out which
of the party was in actual possession at the time of the report or
the information. However, if it appears to the Executive
Magistrate that any of the party has been forcefully and
wrongfully dispossessed within two months next before the date
on which the report or information was received by him or after
that date and before the date of his order under Sub-Section (1),
he may treat the party so dispossessed, as if that party had been
in possession and he is empowered to restore the possession to
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
the party so forcefully and wrongfully dispossessed and pass
order forbidding of disturbance of such possession, until
eviction therefrom in due course of law.
26. Hence, the inquiry under Section 145 Cr.PC is
limited to the question as to who was in the actual possession on
the date of the report or information, irrespective of the title to
the property and right to possess the same. The purpose of the
provisions is to provide a speedy and summary remedy so as to
prevent a breach of peace by submitting the dispute to the
Executive Magistrate for solution as between the parties
disputing the question of possession over that property. In this
regard, one may also refer to the following judicial precedents:
(i) Ashok Kumar Vs. State of Uttrakand
(2013) 3 SCC 366
(ii) Sharad Yadav @ Gappu Vs. State of U.P.
2013 SCC Online All 4840
(iii) Madhu Sharma Vs. Ajit Sharma
(2013) 2 Gauhati Law Reports 837
(iv) Brahmputra Iron & Steel Co. Pvt. Ltd. Vs.
Premchand Tolaram Babna Charitable Trust,
Assam, 2012 Cri.L.J. (NOC) 375 (Gau)
(v) Shanti Kumar Panda Vs. Shakuntala Devi
(2004) 1 SCC 438
(vi) Ranbir Singh Vs. Dalbir Singh & Ors.
(2002) 3 SCC 700
(vii) Prakash Chand Sachdeva Vs. P.R. & Anr.
(1994) 1 SCC 471
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
(viii) Chandu Naik Vs. Sitaram B. Naik
(1978) 1 SCC 210
(ix) R.H. Bhutani Vs. Mani J. Desai
1968 SCC Online SC 5
(x) Bhinka Vs. Charan Singh,
AIR 1959 SC 960
27. It also emerges from the statutory provisions that
the condition precedent for initiating proceeding under Section
145 Cr.PC is satisfaction of the Executive Magistrate regarding
apprehension of breach of public peace on account of dispute
relating to the actual possession of the subject property, as per
report or information received by the Executive Magistrate.
Such satisfaction must be based on ground mentioned in the
preliminary order made under Section 145(1) Cr.PC.
28. It is also pertinent to point out that the concept of
public peace and tranquility is much wider concept than
instances of tension between few individuals arising out of
private disputes between them in regard to landed property.
Public order and peace affects public at large. If the effect of
any dispute is confined only to few individuals who are parties
to the dispute, such dispute could not give any apprehension of
breach of public peace and tranquility. Such private civil
disputes comes within exclusive jurisdiction of Civil Court.
Extraordinary jurisdiction under Chapter X of the Cr. P.C. has
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
been provided to Executive Magistrates to maintain public
peace and tranquility by nipping such breach in the bud.
29. Hence, the Executive Magistrates are expected to
invoke their jurisdiction under Section 145 Cr.PC only in cases
where there is apprehension of breach of public peace and
tranquility. They should refrain from exceeding their jurisdiction
and encroaching upon jurisdiction of Civil Courts. Colourable
exercise of jurisdiction by Executive Magistrates would be
against the object and spirit of Chapter X Cr.PC. and it would
render Civil Courts redundant 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. In
this regard, one may also refer to the following judicial
precedents:
(i) Md. Ansaruddin Vs. State of Assam
(2008) Cri.L.J. (NOC) 479 (Gau)
(ii) Chirstalin Costa Vs. State of Goa
1993 MHLJ 1409
(iii) Tarulata Devi Vs. Nikhil Bandhu Mishra
1982 SCC Online Gau 35
30. The remedy for dispute in regard to title and right
to possession lies in the civil law and parties concerned are
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
required to move Civil Court for the adjudication of their civil
rights and interest. They may also get interim order for
protecting the subject property by way of injunction or
appointment of receiver. Only dispute regarding actual
possession of the parties giving rise to apprehension of public
peace and tranquility comes under jurisdiction of Executive
Magistrate under Chapter X of Cr.PC.
31. It is also pertinent to point out that if a Civil Suit
regarding title and possession is pending in regard to the
property in question in a Civil Court, a parallel proceeding
under Section 145 Cr.PC is not permissible. It would be sheer
wastage of public time and money. The Civil Court is also
competent to adjudicate the dispute regarding actual possession
of the property between the parties and pass interim order
during pendency of the Civil Suit. Hence, no purpose would be
served by permitting parallel criminal proceeding under Section
145 Cr.PC by Executive Magistrate. It goes without saying that
outcome of proceeding under Section 145 Cr.PC is subject to
outcome of Civil Suit and the order of Civil Court is binding
upon the criminal Courts. Hence, there is no justification for
continuation of parallel proceeding under Section 145 Cr.PC, if
Civil Suit is already pending in Civil Court in regard to the
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
landed property in question. In this regard, one may also refer
to the following judicial precedents:
(i) Kunjbihari Vs. Balram and Anr.
(2006) 11 SCC 66
(ii) Gyandeo Sharma Vs. State of Bihar
2006 (2) PLJR 181
(iii) Ras Bihari Rai & Ors. Vs. The State of Bihar
(2006 SCC Online Pat 263)
(iv) Nand Kishore Prasad Sah Vs. State of Bihar,
2005 (2) PLJR 506
(v) Mahar Jahan vs. State of Delhi
(2004) 13 SCC 421
(vi) Mahant Ram Saran Das Vs. Harish Mohan
(2001) 10 SCC 758
(vii) Amresh Tiwari Vs. Lalta Prasad Dubey
(2000) 4 SCC 440
(viii) Atahaul Haque & Ors. Vs. Md. Allauddin
(2000) 3 PLJR 90
(ix) Chandra Shekhar Singh & Ors. Vs. State of
Bihar & Anr., (2000 SCC Online Pat 1095)
(x) Prakash Chand Sachdeva Vs. State & Anr.
(1994) 1 SCC 471
(xi) Ram Sumer Puri Mahant Vs. State of U.P.
(1985) 1 SCC 427
32. Now coming to the case on hand, I find that from
application of O.P. No.2, Sarojani Devi, proceeding under
Section 145 Cr.PC was initiated by learned Executive
Magistrate and on the basis of the report of the Circle Officer in
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
pursuance to the application of Sarojani Devi, the preliminary
order dated 28.01.2014 was passed by learned Executive
Magistrate under Section 145 Cr.PC.
33. Here it is relevant to mention that in her
application, said Sarojani Devi has alleged that the petitioner
herein were bent upon to forcefully dispossess her from the
landed property in question. However, as per report of the Circle
Officer as sought for by the learned Executive Magistrate, the
purchasers of the land in question were in possession. However,
as per the report, there is dispute among the parties in regard to
the title to the property and hence the Circle Officer observed
that there is apprehension of breach of peace.
34. Here, it may be pointed out that learned Executive
Magistrate had passed the preliminary order in the light of the
report of the Circle Officer. But in the report of the Circle
Officer, there is no reference to any dispute as to actual
possession of the property or any attempt for forceful
dispossession. There is also no reference that public at large are
affected and involved in the dispute. The dispute is confined
only to the parties concerned.
35. As such, as per the facts and circumstances as
emerging from the report of the Circle Officer, at most there was
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
private dispute between the parties in regard to the landed
property in question for which the parties were required to move
Civil Court. There was no occasion for the Executive Officer to
pass the preliminary order under Section 145 Cr.PC. He should
have closed the proceeding initiated on the basis of the
application of the said Sarojani Devi. Here the learned
Executive Magistrate appears to have exceeded his jurisdiction
encroaching upon that of the Civil Court, subjecting the parties
concerned to unnecessary litigation before himself. He should
have advised the parties to move Civil Court. I further find that
Sarojani Devi has also filed one Civil Suit in the Civil Court in
regard to some part of the landed property in question in regard
to right, title and possession. Hence, there is no question of
continuation of parallel proceeding under Section 145 Cr.PC.
36. Here it would be necessary to refer to the
submission of learned senior counsel for the O.P. No.2 that Civil
Suit pending in the Civil Court is only in regard to small part of
the land which is subject matter of the proceeding under Section
145 Cr.PC before learned Executive Magistrate. But, it may be
pointed out that as per the report of the Circle Office, the
proceeding initiated under Section 145 Cr.PC itself is liable to
be terminated. Circle Officer has not reported that there was any
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
dispute regarding actual possession of the property and public at
large are interested and involved in the dispute and unless such
dispute is not looked into by the Executive Magistrate, breach of
peace and tranquility may be breached in the locality. As such,
as per the report, it was a private dispute requiring the parties to
move Civil Court for adjudication of their rights and title.
37. As such, the preliminary order passed under
Section 145(1) Cr.PC is itself not sustainable vitiating the
subsequent impugned order passed under Section 146(1) Cr.PC.
38. I further find that the impugned attachment order
dated 27.10.2014 has been passed under Section 146(1) Cr.PC,
prior to conclusion of the inquiry under Section 145 Cr.PC on
the basis of his finding that there is tension between the parties
and there is possibility of breach of peace.
39. Here it would be pertinent to point out that prior to
conclusion of the inquiry under Section 145 Cr.PC, the
Executive Magistrate could attach the property only on the basis
of an emergent situation and emergent situation as contemplated
under Section 146(1) Cr.PC connotes much more than mere
apprehension of breach of peace. Such breach of peace must be
appearing to be imminent. Moreover the Executive Magistrate is
also required to refer to the material facts and circumstances in
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
his order showing emergent situation, so that higher court
could independently assess the situation and test objectively
whether the Executive Magistrate has applied his judicial
mind for his satisfaction. But in the impugned order, learned
Executive Magistrate has not referred to such material facts
and circumstances which may be termed as emergent
situation.
40. Hence, in view of the aforesaid facts and
circumstances, there was no occasion for the learned
Executive Magistrate to continue the proceeding under Section
145 Cr.PC after report of the Circle Officer. He should have
dropped it. The parties should have been advised to move
Civil Court for adjudication of their rights and title. There was
no question for passing order under Section 146(1) Cr.PC
attaching the subject property.
41. Accordingly, the present petition is allowed,
quashing the proceeding under Sections 145 and 146(1) Cr.PC
pending in the Court of learned Executive Magistrate. The
impugned order dated 16.05.2016, passed by learned
Additional Sessions Judge-III, Nawada in Criminal Revision
No. 44 of 2015 / 16 of 2016 and the order dated 27.10.2014
passed by learned Sub-Divisional Magistrate, Rajauli, District-
Patna High Court CR. MISC. No.41314 of 2016 dt.28-01-2025
Nawada in proceeding bearing No. 1M of 2014 are also set
aside.
(Jitendra Kumar, J.)
ravishankar/shoaib
AFR/NAFR AFR
CAV DATE NA
Uploading Date 06.02.2025
Transmission Date 06.02.2025
