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Narayanmal Maheshri Vs. Lalit Giri and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantNarayanmal Maheshri
RespondentLalit Giri and ors.
Excerpt:
- - , if he is satisfied that such action is necessary and to proceed according to law......kokrajhar dropping certain proceedings under section 145, criminal procedure code.2. since the learned magistrate could not himself decide as to which of the parties were in possession of the disputed land, he referred the matter to the court of the learned munsiff, kokrajhar under section 146(1) of the criminal procedure code, the learned munsiff came to the finding as under;from the above discussion it is palpably clear that the parties are in joint possession of the disputed land in question.in other words, the learned munsiff held that the disputed land was not in ex-elusive possession of any of the parties, but was possessed jointly by both the parties. sub-section (1-b) of section 146 of the criminal procedure code provides that a magistrate must on receipt of the decision of.....
Judgment:

D.M. Sen, J.

1. This is an application under Section 439, Criminal Procedure Code against an order passed by the learned Sub-Divisional Magistrate (Judicial). Kokrajhar dropping certain proceedings under Section 145, Criminal Procedure Code.

2. Since the learned Magistrate could not himself decide as to which of the parties were in possession of the disputed land, he referred the matter to the Court of the learned Munsiff, Kokrajhar under Section 146(1) of the Criminal Procedure Code, The learned Munsiff came to the finding as under;

From the above discussion it is palpably clear that the parties are in joint possession of the disputed land in question.

In other words, the learned Munsiff held that the disputed land was not in ex-elusive possession of any of the parties, but was possessed jointly by both the parties. Sub-section (1-B) of Section 146 of the Criminal Procedure Code provides that a Magistrate must on receipt of the decision of the Civil Court dispose of the proceeding under Section 145, Criminal Procedure Code in conformity with that decision. In the instant case, the learned Magistrate's order dated 17-2-1973 is as under:

Received back the reference sent to the learned Munsiff vide Memo No. C/103 dated Kokraihar, the 16th February, 1973.

According to the finding of the learned Munsiff none of the parties having been found in possession of the disputed land, the proceeding is dropped under Section 145, Criminal Procedure Code.

Although this order is not strict conformity with the decision of the Civil Court, it substantially follows the spirit thereof. On the basis of the decision of the Civil Court that the disputed land was in joint possession, the learned Magistrate dropped the proceedings under Section 145, Criminal Procedure Code.

3. The question that falls for decision in this application under Section 439, Criminal Procedure Code is whether after the receipt of a finding by the Civil Court under Section 146, Civil Procedure Code that the disputed land is in joint possession of both the parties in dispute, the learned Magistrate had any alternative but to drop the proceedings under Section 145, Criminal Procedure Code.

4. Mr. J. N. Sarma, the learned Counsel for the petitioner, has invited my attention to various decisions of several High Courts in this matter. He has drawn my attention to a decision of the Mysore High Court in Hanumanpa v. Kondappa AIR 1964 Mys 195 : (1964) 2 Cri LJ 319 where N. Sreenivasa Rau, C. J., who delivered the judgment of the Court, had held as follows:

If a Civil Court finds that both the parties have been in joint possession, then the Magistrate has to drop the proceedings and he has no jurisdiction to attach the property under Section 146 so as to be effective after his final order.

In this case, their Lordships had discussed almost all the available cases on this matter and had come to the above finding. I very respectfully agree with the ratio decidendi of this case that when it is found that both the parties are in joint possession of any disputed land, the learned Magistrate cannot put any particular party in possession thereof, and accordingly he cannot but drop the proceedings under Section 145, Criminal Procedure Code. It must be noted that Section 145, Criminal Procedure Code is a preventive power in the hands of the Magistrates and the question of its exercise arises only where there is a dispute as regards the possession of any plot of land. Where it is found that both the parties are in possession of the land in question, naturally one party cannot be placed in possession to the exclusion of the other and therefore the proceedings under Section 145, Criminal Procedure Code must come to an end.

5. The next point that arises is whether the learned Magistrate could suo motu pass an order under Section 107, Criminal Procedure Code, so as to obviate any likelihood of breach of peace. In that connection, Mr. Sarma has referred me to a decision of the Rajasthan High Court in Nahar Singh v. State . Their Lordships held therein as follows:

We now come to the third question. This question also pre-supposes that, the Magistrate has come to a finding that the property was in the joint actual possession of the parties. The question further pre-supposes that the Magistrate apprehends a breach of the peace between the parties on account of this. We are then asked whether the Magistrate is competent to ask for a security to keep the peace under Section 107, Criminal P. C. in two circumstances namely, (a) where the proceedings were initiated under Sections 145 and 107, Criminal Procedure Code and (b) where the proceedings were taken exclusively under Section 145. Criminal Procedure Code. We have already indicated that there should not be a mixed proceeding both under Sections 145 and 107. Properly speaking, proceedings under Sections 145 and 107 should be separate. If they are separate, the Magistrate can drop the proceedings under Section 145 and pass such order as he thinks fit in the proceedings under Section 107. If, however, the Magistrate has taken the irregular course of having mixed up proceedings under Sections 145 and 107, Criminal P. C. he can drop those proceedings and by a separate order commence proceedings under Section 107. Where, however, proceedings have been taken exclusively under Section 145, the Magistrate cannot pass an order under Section 107. Criminal P. C. in those very proceedings and they must be dropped but as stated above, it is open to him to start fresh proceedings by order under Section 107, Criminal P. C., if he is satisfied that such action is necessary and to proceed according to law. This is our answer to question No. 3.

I respectfully agree with the observations in the above judgment that where proceedings are taken exclusively under Section 145, Criminal procedure Code and the Magistrate finds that both the parties are in joint actual possession, he cannot but drop the proceedings and that it is also not open to him to start fresh proceedings by an order under Section 107, Criminal Procedure Code.

6. In the above view of the matter, I am of the opinion that the order of the learned Magistrate dropping the proceedings under Section 145, Criminal Procedure Code after receipt of the decision of the learned Munsiff, to whom the matter was referred under Section 146(1), Criminal Procedure Code, that the disputed land was in joint possession of the parties, was a correct one. As such, this cannot be interfered with in this application under Section 439, Criminal Procedure Code.

7. The application is accordingly dismissed.


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