Jagroop and Others vs State of U.P. and Others

S.K. Phaujdar, J.—Through this present application u/s 482, Code of Criminal procedure the applicants desired that a proceeding u/s 145, Code of Criminal procedure drawn up in Criminal Case No. 26 of 1997/ Panchanand Pandey v. Jagroop and., others, pending before the Sub-Divisional Magistrate, Chakia, district Chandauli, be quashed. There has been a further prayer for quashing an order recorded u/s 146(1), Code of Criminal procedure whereby the concerned land was directed to be attached. It was urged that the police report on which action was taken as also the report of the Tehsildar did not speak of any breach of peace and as such, the Magistrate lacked the initial jurisdiction to drop the aforesaid proceedings. It was further contended that there had been an order by a civil court, confirmed by the High Court, whereby the parties were directed to maintain status quo as regard possession.

The proceeding was drawn up on 22.12.1997 under an order of the Sub-Divisional Magistrate, Chakia, and the preliminary order indicates that the Magistrate stood satisfied from the report of the Tehsildar dated 3.12.1997 and the report from the Police Officer dated 16.1.1997 that both the parties were disputing over possession of land in question and there was tension at the spot. Accordingly, the Sub-Divisional Magistrate directed both the parties by his order dated 22.12.1997 to appear before him and to file their written statement in support of their possession over the land in question.

On the same day, the Magistrate recorded a further order u/s 146(1), Code of Criminal procedure indicating that he was satisfied that there was a tension between the parties at the spot over possession of the disputed land and both were trying to harvest the standing crops and an untoward incident was apprehended at any moment. Accordingly, he directed attachment of the land u/s 146(1), Code of Criminal procedure and directed the concerned police station to place the land in custody of a third person not interested in the dispute.

The report of the Topsider is at Annexure-No. 10 to the present application. It was indicated in the report that the application of Panchanand Pandey was sent for enquiry by the Topsider with a direction to make a report thereon. The report indicated that the parties litigated for the land before the consolidation authorities and the Topsider found that the land in question was used to be cultivated by Panhuman and others and upon that land again, the opposite parties brought cast seeds forcibly. Both the parties used to quarrel at the time of the harvesting. The Topsider reported that police be deputed to stop illegal harvest and proceedings u/s 145, Code of Criminal Procedure be drawn up.

There had been a police report as well where also long standing litigation between the parties were indicated on one side a group of harijan were claiming the land on the basis of patta given by the Government and on the other side, a non-harijan was claiming the land. Police report Indicates that the parties were directed to maintain status quo and to get the dispute resolved through Court and the parties agreed to it. Police kept special watch on the situation but observed that there was no necessity of any police action as the dispute was at least 20 years old.

On presentation of this application, an order was recorded on 17.2.1998 in presence of both the parties and a date for submission of counter-affidavit was fixed. It was further ordered that if any standing crop was there on the land, it would not be harvested within next ten days. The matter was fixed on 24.2.1998 but was left out and no order regarding the crop was passed and since thereafter several adjournments were granted. A counter-affidavit was filed on behalf of the Respondents and the matter was heard on 7.9.1998. It was indicated that interim order if in operation would stand extended till the date of the judgment.

In their affidavit and counter-affidavit, the parties gave the details of their claim and counter claim on the land in question. In a proceedings u/s 145, Code of Criminal procedure however, a Court is required to look to the factor of possession only without reference to the merits or claims of the parties to a right to possess the subject In dispute. The Court is required to decide whether any and which of the party was on the date of the order u/s 145(1), Code of Criminal procedure in possession of the subject of the dispute. It is true that there had been a direction for maintaining status quo and the High Court also, while rejecting a writ petition between the parties, observed that the parties were to maintain status quo. Status quo order does not clearly indicate whose possession was directed to be maintained, the Court simply desired by recording a status quo order that whatever be the situation, the same should not be disturbed. The mere status quo order, therefore, may not preclude a criminal court to probe the facts of actual physical possession if at all an apprehension of breach of peace over possession of immovable property is brought to its knowledge.

The order u/s 145(1), Code of Criminal procedure makes a reference to two reports. One was from the Topsider and the other was from the police. It is true that the police report did indicate that no police action was necessary but the very tenor of the report suggested that the parties had a real dispute over possession of the land and only due to police intervention, they agreed to maintain status quo and neither party was ready to concede the possession of the other. The Topsider report clearly spoke that the each party was trying to harvest the standing crops despite objections by the other party. There was a clear suggestion by the Topsider that police should be deputed to stop illegal harvest and a proceeding u/s 145, Code of Criminal procedure should be drawn up. On these materials, the Sub-Divisional Magistrate, Chakia, had opined that he was satisfied about a breach of peace over possession of the concerned land and this satisfaction may not be challenged on the ground that there was no indication in the reports about breach of peace.

So far the order u/s 146(1), Code of Criminal procedure is concerned, the statue empowers the Court to attach the subject of the dispute if the Magistrate considered the case to be one of emergency and that order could be passed at any time after making the order Under Sub-section (1) of Section 145, Code of Criminal procedure In the instant case, the order u/s 146(1), Code of Criminal procedure was drawn up apparently after the Section 145(1), Code of Criminal procedure order although on the same day. The Court was clearly of the view that as the parties were trying to harvest the standing crops on the disputed property, any untoward incident could take place at any point of time and only on those circumstances, he had exercised his powers u/s 146(1), Code of Criminal procedure It is true that the term ''emergency'' has not been used in the order but the contents sufficiently suggest that he was aware of the emergency of the situation. In this light, the order of attachment and appointment of a receiver through police may not be stated to be an action beyond jurisdiction.

The parties will certainly have their full say before the appropriate forum regarding their right to possess but the persistent dispute and quarrel at the time of cultivation and harvest is to be brought to an end and so far the criminal court is concerned, possession of one or the other party must be determined so that apprehension of breach of peace may be avoided till a decision of the civil court is achieved.

For all these above considerations, it appears that right orders were passed by the Sub-Divisional Magistrate, Chakia, district Chandauli, both for initiation of a proceedings u/s 145(1), Code of Criminal procedure and for attachment of the property u/s 146(1), Code of Criminal procedure The Magistrate is directed to proceed with the case and to decide the factum of the actual physical possession of the property according to law at an early date.

The present application stands dismissed. The interim order stands vacated.