Jitendra Kumar Prasad vs State of Bihar and Others

Abhijit Sinha, J.—The second party in a proceeding u/s 144 Cr.P.C. being Case No. 455M of 2005 has prayed for quashing of the order dated 2.1.2006 passed therein by the Sub-Divisional Magistrate, Teghara which was signed on 2.11.2006, whereby he has converted the said proceeding into one u/s 145 Cr.P.C. The bone of contention appears to be 2 kathas out of 14 kathas 1 dhurs of land appertaining to Tauzi No. 6622, Khata No. 1210, Khesra No. 2196, bounded in the north by the road, south by lands of Laxmi Thakur, west the lands of Jay Narayan Prasad and east by own land.

It has been submitted by the learned counsel for the petitioner that the description of the land in question and the boundary thereof as given by the O.P. herein was vague and ambiguous and did not in the least identify the real land in dispute and as such the proceeding was not maintainable. It is also submitted that there was no finding by the learned Magistrate of there being any apprehension of breach of peace which is the prime requisite for a proceeding u/s 145 Cr.P.C. and notwithstanding the same he had converted the proceeding u/s 144 Cr.P.C. into a proceeding u/s 145 Cr.P.C. It was also submitted that the documents filed by the parties with list of documents have not been considered by the learned Magistrate and that there was no finding that there existed a bona fide dispute regarding possession of the land between the parties. On this premise it was sought to be submitted that order in question was a collusive one influenced presumably since the first party was a casteman of the learned Magistrate and his peon was a relative of the first party.

On the other hand it was submitted by the learned counsel for O.Ps. that the learned Magistrate in his order had clearly mentioned that the Title Suit Nos. 38 of 1998 and 71 of 1997 pending before the Munsif, Begusarai. But the same was not in respect of the lands in question herein and, therefore, the Magistrate was very much justified in converting the proceeding u/s 144 Cr.P.C. into one u/s 145 Cr.P.C. The proceeding u/s 145 Cr.P.C. is quasi judicial and quasi administrative in nature, its object being to prevent breach of peace and maintain tranquility and to provide speedy remedy by bringing the parties before the Court and ascertaining which of them was in actual possession and to maintain status quo until their rights were determined by a competent court. Section 145 Cr.P.C. comes into play only when there is a bona fide dispute as to land etc. likely to cause a breach of peace.

From the impugned order it is not clear as to whether there was any apprehension of there being any breach of peace and the reasons which led the learned Magistrate to form an opinion regarding such apprehension. The description of the land in dispute is also not clear. Further it is not also clear as to whether land in question was indeed the subject matter of the Title Suits pending in the Court. The parties have also defaulted in not bringing on record the petitions filed before the Court below which had led to the initiation of the proceeding u/s 144 Cr.P.C. and later on its conversion into the proceeding u/s 145 Cr.P.C.

Due regard being had to the ambiguous situation at hand in which both the parties have not been able to establish their respective cases and the learned Magistrate being unable to fulfill the prerequisites required for conversion of a proceeding u/s 144 Cr.P.C. into one u/s 145 Cr.P.C. the impugned order is hereby set aside and the matter is remanded back to the learned Magistrate for decision in accordance with law. With the aforesaid observation this application is disposed of and the Court below is directed to pass fresh orders in the light of the observation made above in accordance with law.