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2023 Supreme(Online)(GAU) 9275
PRINCIPAL SEAT AT GUWAHATI
MRIDUL KUMAR KALITA, J
MD. OSMAN ALI SAIKIA AND ANR – Appellant
Versus
CHAND MAHAMOD SAIKIA AND 2 ORS – Respondent
Crl.Pet./239/2021
For the Appellants/Petitioners: Mr. D. Kalita
For the Respondents:Mr. D. Das, Advocate (R. 1 and R.2), Mr. D. Das, Additional Public Prosecutor (R.3)
The court ruled that a proceeding under Section 145 of the CrPC requires a likelihood of breach of peace, which was absent in a private dispute, rendering the Magistrate's orders illegal.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 145 and 146 - Petitioners challenged the order dated 04.09.2020 and the attachment order dated 09.11.2020 by the Executive Magistrate, asserting that the proceedings were drawn up without jurisdiction and failed to demonstrate a likelihood of breach of peace - The Court held that the conditions for invoking Section 145 were not satisfied, as the dispute was a private matter not likely to disturb public order - The Magistrate's findings of emergency and possession were deemed without supporting evidence. (Paras 4, 20, 31)
Facts of the case:
The petitioners claimed rights to ancestral land. A civil suit for partition was dismissed, affirming their possession since 1972. The respondents alleged dispossession and sought police intervention. The Magistrate's orders for proceeding under Section 145 and attachment were challenged as illegal.
Findings of Court:
The orders issued by the Magistrate under Sections 145 and 146 CrPC were quashed, highlighting the lack of jurisdiction and necessity for the actions taken.
Issues: Whether the Magistrate had jurisdiction to invoke proceedings under Section 145 and pass attachment orders under Section 146 when the alleged breach was a private dispute.
Ratio Decidendi: The court determined that the private dispute did not involve a likelihood of breach of peace undermining public order and that the matter should have remained within civil court jurisdiction.
Result: The impugned orders were quashed and the petition was allowed.
| Table of Content |
|---|
| 1. inheritance and initial land dispute. (Para 2 , 3 , 4) |
| 2. allegations and procedural rights in attachment order. (Para 5 , 6 , 8 , 10) |
| 3. conditions for magistrate's jurisdiction under crpc. (Para 12 , 13 , 14) |
| 4. nature of disputes warranting section 145 invocation. (Para 18 , 19 , 20) |
| 5. final ruling on jurisdictional errors in orders. (Para 30 , 31) |
JUDGMENT
(Mridul Kumar Kalita, J)
1. Heard Mr. D. Kalita, learned counsel for the petitioner. Also heard Mr. D. Das, learned counsel for the respondent Nos.1 and 2 and Mr. D. Das, learned Additional Public Prosecutor appearing for the respondent No.3.
2. This application under Section 482 of the Code of Criminal Procedure, 1973 has been preferred by the petitioners, namely, (1) Md. Osman Ali Saikia, and (2) Harun Saikia impugning the order dated 04.09.2020 passed by learned Executive Magistrate, Rangia in Case No.53/2020 drawing up the proceeding under Section 145 of the Code of Criminal Procedure, 1973 as well as order dated 09.11.2020 of the Executive Magistrate, Rangia directing the attachment of land of the petitioners under Section 146 (1) of the Code of Criminal Procedure, 1973 .
3. The facts relevant for consideration of the instant criminal petition, in brief, are as follows: -
a. The petitioners and the respondents are related to each other.
They inherited 17 bigha 12 lecha of land, from common ancestor. Though, in the year 1972 a partition deed was executed between the parties, however, no partition by metes and bounds was done between the parties. The petitioner No.1, as plaintiff, instituted a suit in respect of a plot of land measuring 2 katha 3 lecha covered by Dag no. 1634 of KP Patta no. 144 of village Nagaon, Mouza, Karara Police Station Baihata Chariali under Kamalpur Revenue Circle. The said plot of land is the part of the ancestral land measuring 17 bigha 12 lecha, which comprised of several dags. The petitioner prayed for relief of declaration of their right, title and interest and also for partition of their aforementioned ancestral land.
b. The respondents contested the suit by filing their written statement and also their counterclaim. The aforesaid suit was registered as Title Suit No. 25/2011. The Court of learned Munsif, Rangia decreed the suit and dismissed the counterclaim of the respondent and directed the Deputy Commissioner, Kamrup, to partition the suit land by meets and bounds. However, the respondents preferred an appeal before the Court of learned Civil Judge, Kamrup, which was registered as Title Appeal No. 06/2017 and by judgment and ordered dated 09.11.2018, the learned Appellate Court of Civil Judge, Kamrup set aside the judgment of learned Munsiff, Rangia on the ground of non- maintainability of a suit for partition of a land which has already been partitioned. Though, the judgment of the Trial Court was set aside by the First Appellate Court of Civil Judge, Kamrup in Title Appeal No. 06/2017, however, learned First Appellate Court observed that the petitioner No.1 (plaintiff) has the right, title and interest over the suit land and it also upheld the decision of learned Trial Court with regard to the counterclaim of the respondents, which was dismissed by learned Trial Court.
c. Thus, by the judgment dated 09.11.2018 passed in Title Appeal No. 06/2017, though, it was observed that the present petitioner No. 1 has the right, title and interest over the suit land, however, no relief was granted to the present petitioner. It is also pertinent to mention herein that no further appeal was preferred by any of the parties against the said judgment passed by learned First Appellate Court in Title Appeal No.06/2017.
d. Thereafter, on 22.04.2020, the respondents filed a complaint before the Officer-in-Charge of Baihata Police Station, inter-alia, alleging that in the year 1972, the petitioner No. 1 and his 3 sons dispossessed the respondent from the land, measuring 2 katha 3 lecha covered by Dag no. 1634 under KP Patta no. 144, though the
