Gopal Singh And Ors. vs State Of Bihar And Anr

Heard Sri Rajesh Kumar Singh, learned advocate for the petitioners and Sri S.S. Dwivedi, learned senior advocate for the opposite party no. 2.

A 144 proceeding was initiated at the instance of opposite party no. 2 giving rise to Misc. Case No. 625 of 2012. It appears from the records that before the Magistrate, there were two reports of the police; the first report being unacceptable to the petitioners as according to them it was a report prepared without visiting the site, and the second report by the police indicating that the petitioners had cultivated the land in dispute and there were standing crops of wheat and maze on the same.

Since there were competing claims with respect to possession of the concerned plot of land by the parties, the Magistrate, in his wisdom, passed an order dated 19.01.2013 holding that there could be a possibility of breach of peace and therefore converted the proceeding under Section 144 into one under Section 145. This order of the learned Sub-Divisional Magistrate, Saharsa Sadar was challenged by the petitioner before the learned Additional Sessions Judge-I, Saharsa vide Cr. Rev. No. 38 of 2013, which challenge did not succeed.

The matter travelled to this Court where a bench of this Court vide order dated 07.08.2018 passed in Cr. Misc. No. 3635 of 2015 found that the learned Sub-Divisional Magistrate, Saharsa as well as the revisional court fell in error in converting the proceeding under Section 144 into one under 145 when the second report of the police indicated that the crops had been sown by the petitioners over the said plot of land and that they were in possession and had been cultivating the said plot of land since 1962. This Court therefore was of the view that the conversion of the proceeding under Section 145 was unwarranted and the revisional court wrongly upheld the order of the learned Magistrate.

From the perusal of the order dated 07.08.2018 referred above, it appears that the case was decided without hearing the opposite party no. 2 who was the first party before the learned Magistrate. The opposite party no. 2 challenged the order of this Court before the Supreme Court vide Cr. Appeal No. 571 of 2019. The Supreme Court on finding that opposite party no. 2/appellant before the Supreme Court was not heard, remanded the matter to the High Court for a fresh consideration after hearing the parties.

From the perusal of records and after hearing the learned advocates for the parties, what transpires is that the petitioners as well as opposite party no. 2 come from the same stock of family; the grand-father of opposite party no. 2 and great grand-father of the petitioners were own brothers. The manner in which the property is said to have come to the possession of the parties is not required to be stated here and it would suffice to record that there are competing claims of the parties with respect to the ownership and possession of the said plot of land.

In the year 2013, the apprehension of breach of peace was made known to the Magistrate at the instance of opposite party no. 2. As noted above, the first report of the police affirmed the contention of the opposite party no. 2 before the learned Magistrate. On objection, the learned Magistrate asked for another report from the police, which report was in favour of the petitioners as it indicated that the petitioners were in possession and had been cultivating the land in question since 1962. However, considering that there were rival claims of the parties, the proceeding was converted into Section 145.

Today, Mr. Dwivedi, learned senior advocate for opposite party no. 2 submits that with the passage of six years in between, situation still remains the same and there exists competing claim of the parties with respect to possession leading to apprehension of breach of peace. The further averment of the opposite party no. 2 is that in recent past, an attempt was made to do away with the life of opposite party no. 2, for which a criminal case has been lodged in which the petitioners have been made accused. Responding to the aforesaid contention by Sri Dwivedi, Mr. Rajesh Kumar Singh, learned advocate has stated that this development/happening would, but, require a fresh institution of proceeding for apprehension of breach of peace and this fact cannot be transported to an issue which had cropped in the year 2013 but could not finally be decided and the dispute continued till date.

The submission urged on behalf of Sri Rajesh Kumar Singh may have been correct in case the issue would not have been relatable to maintenance of law and order and public tranquility.

Any fresh cause of action gives rise to an occasion for preferring a fresh petition before the Magistrate for stalling breach of peace. However, in the present case, since the dispute continued to exist which is evident from the litigation having travelled up to the Apex Court, it can be inferred that none of the parties have surrendered their claim to possession over the said plot of land. It would not be correct to state that the new facts which have arisen in between would give rise to a fresh proceeding and cannot be taken into account in the present proceeding.

Chapter-X of the Code of Criminal Procedure, 1973 deals with the provisions for maintenance of public order and tranquility. With respect to urgent cases of nuisance or apprehended danger, provision has been made in the Code empowering the Magistracy to control the same. In case of dispute as to immovable property, Section 145 provides that if an Executive Magistrate is satisfied from the report of a police officer or upon any information that a dispute is likely to cause breach of peace over any land or water body within his jurisdiction, he shall take notice of the same and shall require parties to attend his court on specified date with written statement of their respective claim with respect to actual possession of the subject of dispute.

It may be noted that the petitioners in the first instance objected to the conversion of 144 proceeding into one under 145. With two conflicting police reports and rival claim of the parties with respect to possession, this Court is of the view that the learned Magistrate rightly came to the conclusion that there could be an apprehension of breach of peace between the parties.

On that aspect, this Court finds that the revisional court also correctly decided the dispute and held that the learned Magistrate had noted his subjective satisfaction about the apprehended breach of peace and therefore upheld the order of conversion of 144 proceeding into one under 145.

However, this Court on the earlier occasion had relied strongly upon the police report which was furnished in the second instance and held that such report ought to have been accepted by the learned Magistrate in holding that the petitioners were in possession of the land since 1962 and therefore there was no apprehension of breach of peace as the petitioners had not only been in possession but had been cultivating the land since 1962. If this aspect was found to be correct then perhaps the objection or the apprehension of the opposite party no. 2 that there could be breach of peace was based on no material whatsoever. As such the order of the Magistrate as also of the revisional court were set aside.

It has been noted above that because the opposite party no. 2 was not heard while the order was passed, the matter has been remanded by the Supreme Court for a fresh consideration.

It has already been noted that the emergency situation has to be dealt with on the day when such situation crops up for consideration. The dispute continues since 2013 and therefore, it would only be a waste of time to ask the parties to approach the Magistrate in a fresh proceeding with respect to an apprehension regarding breach of peace. Since the proceeding is alive and the dispute continues, it would be in the interest of the parties that the issue of possession be decided by the Magistrate till the time the cloud over title is settled by a competent court having jurisdiction.

As such, the concerned Magistrate is directed to afford hearing to the parties, take evidence and decide the issue of possession as early as possible. It would be open for the parties to bring on record before the learned Magistrate fresh materials for his consideration. The Magistrate shall not be influenced by the developments which have taken place in this case and shall decide the issue of possession between the parties on the basis materials placed before it. The learned Magistrate would also consider the desirability of obtaining a fresh police report or spot verification about the possession.

Thus, for all practical purposes, the orders passed by the learned Magistrate converting a 144 proceeding into one under 145 and the revisional order affirming the same is sustained.

The Magistrate shall act in accordance with what has been directed above and shall pass an order without any delay.

With the aforesaid direction/observation, the petition is disposed of.