2023 Supreme(Pat) 788

IN THE HIGH COURT OF JUDICATURE AT PATNA
JITENDRA KUMAR, J.
Criminal Misc. No.36019 of 2016
(3.10.2023)
Yugal Kishore Choudhary ... Petitioner
vs.
State of Bihar & Ors. ... Opp. Parties

Headnote:

Criminal Procedure Code, 1973 – Section 145 – Maintenance of public order and tranquility – Very foundation of jurisdiction of Magistrate in cases under Section 145 is based on existence of a dispute giving rise to apprehension of breach of peace and as soon as such apprehension ceases to exist or if it never existed, jurisdiction of Magistrate to proceed with case ceases and only order he has to pass is to drop proceedings – Enquiry under Section 145(4) is limited to question of actual possession on relevant date and is not concerned with claims and merits of parties in regard to right to possess subject of dispute – High Court, in exercise of its revisional jurisdiction, would not go into question of sufficiency of material which has satisfied Magistrate. (Paras 9 and 11)

Criminal Procedure Code, 1973 – Section 145 – Maintenance of public order and tranquility – Purpose of provisions is to provide a speedy and summary remedy so as to prevent a breach of peace by submitting dispute to Executive Magistrate for resolution as between parties disputing question of possession over property – Executive Magistrate would not take cognizance of dispute if it is referable only to ownership or right to possession and is not over possession simpliciter; so also Executive Magistrate would refuse to interfere if there is no likelihood of breach of peace or if likelihood of breach of peace though existed at a previous point of time, had ceased to exist by the time he was called upon to pronounce final order so far as he was concerned – Reasoning recorded by Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before competent court and competent court is not bound by findings arrived at by Magistrate even on question of possession though, as between parties, order of Magistrate would be evidence of possession – Orders under Section 145 of Code are merely police orders and do not decide any question of title – Even a person having a right to possession cannot dispossess another by taking law into his hands and making forcible entry otherwise than in due course of law. (Paras 12, 13, 15, 18 and 20)

Criminal Procedure Code, 1973 – Section 145 – Maintenance of public order and tranquility – A private dispute or a dispute which has no bearing on public order and tranquillity, cannot be regarded as a dispute and such a dispute does not empower an Executive Magistrate to exercise jurisdiction under sub-section (1) of Section 145 – Expression "breach of the peace" does not really mean mental peace of parties concerned – Disturbance of public order is distinct and different from actions of individuals which do not disturb society to the extent of vibrating a general disturbance of public order – Breach of peace, envisaged under section 145, Cr. P.C., means disturbance of even tempo of life of community in a given locality – 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 – Civil disputes are to be decided by Civil Courts and unsuccessful litigant has right to file appeal – SDMs cannot use power conferred on them under Sections 145 and 146 of Cr. P.C. to pass interim injunction order when Civil Court has refused to do so – Parallel proceedings should not be permitted to continue – Likelihood of breach of peace should not only be existing on the date of application, but also on the date of preliminary order passed by Magistrate. (Paras 24, 26, 27, 31, 32 and 44)

Criminal Procedure Code, 1973 – Section 145 – Maintenance of public order and tranquility – Starting point of any proceeding under Section 145 of Cr.P.C. is not the information received by the Magistrate or the application made to him or even police report but his satisfaction recorded in writing – Apprehension of breach of public peace is sine qua non for invoking jurisdiction under Section 145 Cr. P.C. by Executive Magistrates – Concept of public peace and tranquility is much wider concept than that of simple problem of law and Order – All law and order problems cannot be equated with breach of public peace unless it affects public at large, like riot, affray or widespread unrest – Simple disputes between two individuals involving violation of penal laws on part of two cannot be termed as breach of public peace – Similarly, purely civil dispute between two individuals also cannot be treated as breach of public peace – On pretext of apprehension of breach of public peace, Executive Magistrate is not expected to exercise jurisdiction of Civil or Criminal Courts – 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. (Paras 47 and 53)