Ali Hassain Mian vs Mahabir Ram, and 3 others

A.P. Sinha, J.—is application is directed against the final order in a proceeding u/s 145 of Criminal Procedure Code (hereinafter referred to as the Code). The petitioner was second party and the opposite party was the first party in the court below. The dispute related to certain lands and the parties claimed their respective possession.

The learned counsel on behalf of the petitioner has stated that as a matter of fact the boundary of disputed land was vague and that being so, the proceeding will also be deemed to be vague and that is enough to set aside the impugned order and the case be sent back for remand.

The learned counsel appearing for the petitioner has stated that it would appear that the opposite party had challenged the boundary of the land stated to be in dispute and that being so when the final order has been passed, he has been given that particular land which he did not claim at all.

The learned counsel appearing on behalf of the opposite party has stated that as a matter of fact the land in question which was the subject matter in the dispute was identified and the land claimed by the opposite party had been the land which has been declared in the possession and matter of fact only northern portion of the boundary has been challenged by the opposite party.

It may be appreciated that a proceeding has been initiated in the year 1977. The very fundamental of the proceeding u/s 145 of the Code is apprehension of breach of the peace. Under the circumstances, if such proceeding lingers for fairly long time, it becomes necessary to find out as to whether the apprehension of breach of the peace existed all through or the proceeding has been kept alive mechanically. I am of strong view that there ought to be some ceiling with regard to the disposal of a proceeding u/s 145 of the Code as has been made in a case of a proceeding u/s 107 of the Code by introducing a provision, as contemplated u/s 116, sub-clause 6 of the Code.

In other words, the manner in which a proceeding u/s 145 of the Code is allowed to linger, specially considering the fact that it is purely a proceeding of preventive nature, any point which, is involved with the question of fact, must be raised at the earliest and that must be decided but a party should not be allowed to take any such plea when the proceeding has been disposed of and that too after considerable period.

In the instant case, when the opposite party is claiming the land and as submitted, the land as a matter of fact claiming had been made subject matter of the dispute excepting the error in the northern boundary. Now, there does not appear to be any confusion with regard to any ambiguity whatsoever now claimed by the petitioner and that ought to have been settled about seven years back and not today. That being so, in my opinion, there is absolutely no occasion for interference in the order and the application is dismissed.