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Judgment
M.Y. Eqbal, J.—By this application u/s 482 Cr.P.C., the petitioners have prayed for quashing the order dated 14.11.2003 passed by the Sub Divisional Magistrate, Chatra in Case No. 62 of 2003 whereby he has converted the proceeding u/s 144 Cr.P.C. into a proceeding u/s 145 Cr.P.C. and also for quashing the order dated 28.3.2005 whereby the revision filed by the petitioners against the aforesaid order was dismissed.
The facts of the case lie in narrow compass:
A case u/s 144 Cr.P.C. was initiated at the instance of the Opposite Party-Complainant who filed an application before the Sub Divisional Magistrate, Chatra on 17.9.2003. According to the Opposite Party, he is owner of the property and there is serious apprehension of breach of peace at the hand of the petitioner-second party. According to the Opposite Party, the land in question was in his peaceful possession on the basis of Partition Suit No. 18 of 1934/ but the petitioners-second party started digging foundation over the land in question, as a result the situation became beyond control. After notice to the other party-petitioners, the Magistrate by order dated 14.11.2003 converted the proceeding into a proceeding u/s 145 Cr.P.C. For better appreciation, the order dated 14.11.2003 is quoted herein below:
Heard the parties through learned advocate and studied their papers/document.
I find it a bonafide land dispute and I feel that tensions for the disputed land prevail among the parties.
Being satisfied 144 CrPC is convened into one u/s 145 CrPC.
Issue notice accordingly.
This is an urgent case and will be decided within three months.
Put up on 21.11.2003.
Aggrieved by the said order, the petitioners filed revision application before the Sessions Judge, Chatra being Cr. Revision No. 66 of 2003. The Revisional Court held that the order passed by the Sub Divisional Magistrate reveals that he after being satisfied that dispute exists which may result breach of peace, converted the proceeding u/s 145 Cr.P.C. It is worth to mention here that both the parties have claimed title and possession over the land in question. The Revisional Court, therefore, in the order held that the Sub Divisional Magistrate will decide the case on merit. Pargraph 7 of the order of the Revisional Court is quoted herein below:
By passing the impugned order the S.D.M. has not decided the case on merit. Both parties have got opportunity to raise their points in their favour before the Court of S.D.M. The plea which the parties have taken in the revision petition may well raise the same before the S.D.M. and the S.D.M. should decide the matter in accordance with the law.
I have heard Mr. Nawal Kishore Prasad, learned Counsel appearing for the petitioners and, Mr. Arvind Kumar Singh, learned Counsel appearing for the Opposite Party.
Section 145 Cr.P.C. empowers the Magistrate to issue notice to the parties for filing written statement of their respective claims with regard to actual possession of the subject of dispute. That power can be exercised only when the, Magistrate is satisfied from a report of police officer or upon other information that a dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof. In such cases, the Magistrate shall make an order in writing stating the grounds of being so satisfied. The object of this Section is to prevent a breach of peace by maintaining one or other of the parties in possession, until the right of one of the parties is determined. The order passed by the Magistrate must indicate the grounds for finding that there was likelihood of breach of the peace. Where the Magistrate simply records the fact of his satisfaction but not the ground of his satisfaction, such order cannot be sustained in law.
From perusal of the cryptic order passed by the Magistrate as quoted herein before, it is clear that the Magistrate without recording the reason and the ground of his satisfaction simply felt that there is a tension for the disputed land prevails among the parties. There is no whisper in the order about the existence of breach of peace. The Revisional Authority instead of examining the legality and validity of the order passed by the Magistrate, exceeded his jurisdiction for going ahead and directing the Magistrate to decide the claims of the parties with respect to the lands. As stated above, the Magistrate has no jurisdiction to decide the title in respect of the disputed land in favour of any of the party.
Having considered the submissions made by the learned Counsel for parties, on the principles discussed hereinabove; the impugned orders passed by the Magistrate and the Revisional Authority suffer from serious error in law.
Hence, this application is allowed and the impugned orders passed by the Magistrate as also the Revisional Authority are set aside.