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SUSMITA PHUKAN KHAUND
Abdul Kayum Barbhuiya, S/o Late Hazi Konamia Barbhuiya – Appellant
Versus
Eakbal Hussain Choudhury @ Ikbal Hussain Choudhury S/o Late Abdul Kayum Choudhury – Respondent
JUDGMENT :
1. Heard Mr. P.K. Deka, learned counsel for the petitioner. Also heard Mr. P. Kataki, learned counsel for the respondents.
2. The petitioner Abdul Kayum Barbhuiya has filed an application u/s 482 of the Code of Criminal Procedure, 1973 (Cr.PC for short) read with Article 227 of the Constitution of India for quashing and setting aside the order dated 27.01.2023 passed by the learned Sessions Judge, Cachar, Silchar in Criminal Revision Case No. 22/2023.
3. The petitioner has submitted that he and his brother Asaddar Ali Barbhuiya are joint owners of the disputed land (D/L for short) in question, admeasuring 1 Bigha 16 Kathas and 6 Chattaks appertaining to 2nd R.S. Patta No. 46, Dag No. 286 at Porgana Gumra, Mouza-Kalain Pt-VII, in the Dist.-Cachar. Vide registered Sale Deed No. 802 dated 05.05.2011 the petitioner and his brother became the owners of the D/L and they have been in possession of the same, without any hindrance from any corner and they have also constructed a pucca house (concrete house). In the year 2016, they obtained an NOC from the concerned Gaon Panchaya
A preliminary order is nothing but foundation of jurisdiction of Magistrate, who draws proceeding.
The Executive Magistrate's findings on possession under Section 145 Cr.P.C. are binding unless proven perverse, and jurisdiction over title disputes lies with civil courts.
Point of Law : Section 145 of Code concerned with restoration of possession and prevention of breach of peace and tranquillity.
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....
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.
Executive Magistrates cannot initiate proceedings under Section 145 Cr.PC if a civil suit related to the same property is ongoing, as it encroaches on civil jurisdiction without established emergency....
Possession rights under Sections 145 and 146 Cr.P.C. must be determined without infringing on principles of natural justice, particularly regarding notice and hearing.
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