PATNA HIGH COURT
Jitendra Kumar, J.
Ravindra Kumar – Petitioner
versus
State of Bihar and Anr. – Opp. Parties
Criminal Miscellaneous No.44237 of 2015
Decided on 11.10.2023

IMPORTANT POINTS
(1) Apprehension of breach of peace – Sections 145 and 146 of Cr.P.C. together constitute a scheme for resolution of a situation where there is a likelihood of a breach of peace because of a dispute concerning any land or water or their boundaries.
(2) Power to attach subject of dispute given under Section 146 of Cr.P.C. must not be exercised light heartedly – Resultant effect of attachment under Section 146 of Cr.P.C. is almost same as an act of confiscation.

Headnote:

(A) Criminal Procedure Code, 1973 – Sections 145 and 146 – Apprehension of breach of peace – Attachment of subject of dispute – Scope of enquiry under Section 145 is in respect of actual possession without reference to merits or claim of any of parties to a right to possess the subject of dispute – Sections 145 and 146 of Cr.P.C. together constitute a scheme for resolution of a situation where there is a likelihood of a breach of peace because of a dispute concerning any land or water or their boundaries – Section 146 cannot be so separated from Section 145 – It can only be read in context of Section 145 – Contextual construction must surely prevail over isolationist construction – Otherwise, it may mislead – There is no express stipulation in Section 146 that jurisdiction of Magistrate ends with attachment – Nor it is implied – Under Section 146, Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment – A case of emergency, as contemplated under Section 146 of Cr.P.C., has to be distinguished from a mere case of apprehension of a breach of peace – Section 146, Cr.P.C. presupposes enquiry by Magistrate on evidence recorded. (Paras 13, 17, 19, 21, 24 and 25)

(B) Criminal Procedure Code, 1973 – Section 146 – Attachment of subject of dispute – Power to attach subject of dispute given under Section 146 must not be exercised light heartedly as it is a desperate remedy for cases in which Magistrate finds it quite impossible to choose between conflicting evidence adduced by two sides – Resultant effect of attachment under Section 146 is almost same as an act of confiscation – A power which is to be exercised in rarest of rare cases, has now become a normal course which is lightly adopted by Magistrates – Emergency means that apprehension of breach of peace is imminent and to fortify, preventive measure, attachment is an absolute essentiality – If there is no apprehension of breach of peace, then a proceeding under Section 145 of Code cannot be initiated. (Para 26)

(C) Criminal Procedure Code, 1973 – Section 145 – Apprehension of breach of peace – Proceeding under Section 145 is an extra-ordinary provision to grant extraordinary relief, when there is likelihood of breach of peace in a given locality – Final order of Magistrate is subject to decision of Civil Court – Private dispute between two persons which does not disturb law and order or occasion breach of peace in locality, cannot form basis for drawing a proceeding under Section 145, Cr.P.C. and forum for obtaining relief in such a case is Civil Court of competent jurisdiction and not Executive Magistrate’s Court – A private dispute is not amenable to exercise of jurisdiction under section (1) of Section 145, unless such a dispute affects even tempo of life of people in a given locality – Civil disputes are to be decided by civil Courts and an unsuccessful litigant has a right to file appeal – SDMs cannot use power conferred on them under Sections 145 and 146 of Cr.P.C. to pass an interim injunction order when Civil Court has refused to do so. (Paras 31, 32, 35 and 39)

(D) Criminal Procedure Code, 1973 – Section 145 – Apprehension of breach of peace – An order under this section must be a speaking order – Failure to indicate ground that there is likelihood of breach of peace vitiates the order – Where order is vitiated, Magistrate fails to get jurisdiction to hold enquiry or pass any order under this section – Defects in preliminary order like failure to set out grounds of his satisfaction regarding likelihood of breach of peace relating to immovable property would make subsequent proceeding without jurisdiction and erroneous in law – Mere apprehension of breach of peace is not sufficient to initiate proceedings under Sections 145 and 146(1) Cr.P.C. – Likelihood of breach of peace should not only be existed on the date of application, but also on the date of preliminary order passed by Magistrate. (Paras 44, 45 and 46)

(E) Criminal Procedure Code, 1973 – Sections 145 and 146 – Apprehension of breach of peace – Attachment of subject of dispute – Concept of public order and peace is much wider concept than that of problem of law and order – Passing an order under Section 145(1) of Cr.P.C. does not automatically attract attachment of property on the ground of emergent situation – Stray instances of violation of penal laws by few individuals are required to be dealt with under our legal framework by prosecution of such individuals in criminal Courts – All law and order problems cannot be treated as breach of public order and peace unless it affects the public at large, like riots, affray or public unrest – In our legal framework, power and jurisdiction are defined for different instrumentalities of State and no instrumentality is expected to exceed its jurisdiction and encroach upon that of others – When Civil Court is in seisin of civil disputes in regard to landed property, parallel proceedings before Executive Magistrates cannot be allowed to proceed – Multiplicity of litigation is not in interest of parties nor should public time be allowed to be wasted over meaningless litigation – Proceedings are abuse of process of the Court and as such, same are liable to be quashed under Section 482 of Cr.P.C. (Paras 49, 51, 54, 55, 56 and 57)

Result: Petition allowed. Impugned orders quashed.