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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ROBIN PHUKAN, J.
G. AKANITO ASSUMI @ G. AKANITO SUMI – Petitioner
Versus
SIKANDER RONGPI – Respondent
Crl. Pet. No. 199 of 2022
Decided On : 20-10-2022
Code of Criminal Procedure, 1973 - Sections 482, 397, 401, 145 - Properties - Possession - Petitioner is owner of a plot - Thereafter, respondent along with some antisocial persons entered into aforesaid land and fell down some trees and also caused mischief of other properties standing on said plot of land - Then petitioner had filed a complaint petition under section 145 Cr.P.C. before court of learned Addl. Deputy Commissioner - Thereafter, on appearance of parties Addl. D.C had fixed case, for filing objection by parties - But, on that day he could not appear before court on account of his illness and he filed adjournment prayer through his brother, and same was granted, but next date was not informed to him - Then when he sent his brother again to enquire about next date then he was informed by Bench Assistant of court that on account of Covid, cases were not taken up and date will be communicated when cases will be taken up - Thereafter, when he went to court he was informed by Bench Assistant of Addl. D.C that case has been disposed of vide ex-parte order, observing that since petitioner remained continuously absent for three consecutive dates without any step, allegations leveled by petitioner/1st party has no any strength and documents submitted by 2nd party is found to be true and right and 2nd party is in actual possession of disputed land since long and thereafter declared possession in favour of 2nd party - Being highly aggrieved, petitioner has preferred this present petition. Para 14
Finding of the Court :
It is categorically stated in petition that he could not appear on due date on account of his illness and his brother had filed a petition for adjournment and though same was granted next date was not informed, and subsequently, when he had sent his brother again, he was informed that case were not taken up on account of Covid and date will be communicated when same will be taken up - When petitioner had enquired about date of case, he was informed that same has already been disposed of - Having not denied these facts specifically, goes a long way to show that impugned order was passed behind back of petitioner in contravention of principle of natural justice as well as in violation of right to fair trial of petitioner - Thus under no circumstances can a person’s right to fair trial be jeopardized - Reference in this context can be made to a decision of Hon’ble Supreme Court in Talab Haji Hussain vs. Madhukar Purshottam Mondkar and Another - As in present case petitioner was not heard before passing of impugned order, his right to fair trial as well as principle of natural justice stands violated - Above being factual as well as legal position, this court is of view that the impugned order cannot withstand legal scrutiny and therefore, this court is of considered opinion that allowing same to stand will perpetuate illegality and therefore, inherent jurisdiction of this court under section 482 of Code of Criminal procedure can be invoked to set it right by quashing impugned order, passed by learned Addl. D.C. in M.R. Case.
Result: Petition allowed.
JUDGMENT :
ROBIN PHUKAN, J.
1. Heard Mr. F. Khan, learned counsel for the petitioner and also heard Mr. M.P. Sharma, learned counsel for the respondent.
2. This petition, under Sections 482, read with section 397/401 of the Code of Criminal Procedure, is directed against the order, dated 05.02.2022, passed by the learned Addl. District Magistrate, Bokajan, Karbi Anglong, in M.R. Case No. 01/2021, under section 145 of the Code of Criminal Procedure. It is to be mentioned here that vide impugned order, the learned court below had declared that the respondent is in actual possession of a plot of land measuring 21 Bigha, covered by Periodic Patta No. 56, Dag No. 78, situated at Nahorjan Block No. 2 village.
3. The factual background, leading to filing of the present petition, is briefly stated as under:
Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or ti....
A preliminary order is nothing but foundation of jurisdiction of Magistrate, who draws proceeding.
Criminal proceedings under Sections 145 and 146 Cr.P.C cannot overrule ongoing civil litigation regarding property ownership, necessitating the maintenance of status quo in possession.
The court ruled that possession disputes under Section 145 Cr.PC must demonstrate a likelihood of public disturbance to invoke jurisdiction.
The proceedings under Section 145 of the Code of Criminal Procedure are intended to maintain public order and do not adjudicate property title, focusing instead on actual possession to prevent breach....
The impugned proceedings and the consequent order were found to be without jurisdiction and in violation of principles of natural justice, depriving the appellant of a fair opportunity to appear and ....
Criminal Procedure Code, 1973 – Section 145 – Life of order passed under Section 145 of Cr.P.C. is conterminous with passing of decree by a Civil Court.
The judgment emphasizes the limited scope of enquiry under section 145 Cr.P.C., focusing on de-facto possession and the applicability of section 146(1) Cr.P.C. in cases of emergency or when the Magis....
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