Vijay Nagpal vs Mahant Sant Swaroop

J.S. Sekhon, J.

The SubDivisional Magistrate (Executive), Amritsar vide his impugned order dated 31101989 had dropped proceedings under section 145 of the Code of Criminal Procedure, 1973 as his predecessor had not passed any order under section 145(1) of the Code but holding that Mahant Sant Swaroop, Akhara Brahm Buta, Amritsar being in possession of the disputed property, and that there was no apprehension of breach of peace.

The only grouse of the learned counsel for the petitionerfirst party before the trial Court is that there was no occasion for the SubDivisional Magistrate to give finding regarding the possession of the property in proceeding under section 145 of the Code of Criminal Procedure without passing any order under subsection (1) of Section 145 of the Code and that once the proceedings were decided to be dropped on the ground of lack of any apprehension regarding breach of peace over the property in dispute, there was no occasion for giving finding as to which party was in possession

It is the admitted case of the parties that a civil suit is also pending regarding title and possession of the property in dispute. Mt. R.S. Bindra, Senior Advocate, assisted by Ms. Renu Bala, Advocate, contends that the Executive Magistrate could have dropped the proceedings only after holding that a particular party was in possession of the property and that there was no apprehension of breach of peace.

The provision of Section 145(1) of the Code of Criminal Procedure, 1973, runs as under :

"145. Procedure where dispute concerning land or water is likely to cause breach of peace : (I) Wherever an Executive Magistrate is satisfied from the report of a 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, 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."

The perusal of the same leaves no doubt that the Magistrate has to first make an order in writing stating that the dispute is likely to cause breach of peace concerning the possession of the property etc. and there after call upon the parties to file their written claims in respect of actual possession of the subject matter of the dispute. In the case in hand, admittedly, no such order was passed by the Executive Magistrate. If that is so, then the very basis of taking cognizance under Section 145(1) of the Code is missing in the case in hand which has certainly resulted in miscarriage of justice.

Under these circumstances, the impugned order dated 31101989 passed by the Executive Magistrate regarding the oblique finding about the possession being not sustainable is ordered to be quashed by accepting this criminal revision. It is however, clarified that the Civil Court is not precluded by this order from deciding the question of possession.

This criminal revision stands disposed of.

Revision disposed.