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Judgment
P.G. Agarwal, J.—Heard Mr. N. Karmakar, learned Counsel for the Petitioner and Mr. P.C. Deka, learned Counsel for the Respondents.
This is an application u/s 482 Code of Criminal Procedure filed by the Petitioner/2nd party for quashing of the proceeding in case No. 600m/99 u/s 145 Code of Criminal procedure.
The Respondent/1st party filed an application before the Addl. District Magistrate, Kamrup, Guwahati alleging inter-alia that the members of second party are threatening to dispossess the 1st party from the plot of land measuring 2 bighas 3 kathas 2 lechas fully described in the schedule and hereinafter referred as the ''DL''. The learned Executive Magistrate by his order dated 23.12.99 drew up a proceeding u/s 144 Code of Criminal Procedure and restrained the 2nd party from entering into the DL. Thereafter, the 1st party filed an application for conversion of the said proceeding into a proceeding u/s 145 Code of Criminal Procedure. On being satisfied that the dispute relates to immovable property, learned Magistrate converted the proceeding u/s 144 Code of Criminal Procedure to one u/s 145 Code of Criminal Procedure by the impugned order dated 22.2.2000. Hence the present application.
It may be mentioned here that the proceeding was drawn up in the month of February, 2000 and the same was contested by the Petitioner by filing written statement. As a matter of fact, the evidence of the 1st was complete and the matter was listed for evidence of the 2nd party. At that stage, the Petitioner has approached this Court in this application. We do not propose to nonsuit the Petitioner on the ground of limitation as the points raised by the Petitioner has got no merit. The first submission of the learned Counsel for the Petitioner is that in a proceeding u/s 144 Code of Criminal Procedure the members of the 2nd party should be directed to abstain from doing an act. They can not be restrained from entering the DL as the same will amount to granting injunction. In a civil suit a direction of abstaining or restraining the second party from entering the DL means one and same thing.
It is further submitted, that the conversion of the proceeding u/s 144 Code of Criminal Procedure to one u/s 145 Code of Criminal Procedure was bad in law. Admittedly there is no provision under the Code of Criminal Procedure for conversion of the proceeding u/s 144 or 107 to one u/s 145 Code of Criminal Procedure but in a catena of decisions, the various High Courts have held that such conversion is permissible. The Division Bench of the Patna High Court reported in 1976 Crl. Law Journal, 306 held that such conversion is permissible under law. The only limitation is that said order of conversion should be passed during the life time of the order passed u/s 144 Code of Criminal Procedure. It is therefore, held that the conversion of proceeding u/s 144 Code of Criminal Procedure to one u/s 145 Code of Criminal Procedure is permissible under law provided the dispute is in respect apprehension of breach of peace. Actual dispossession is not a must and the provision of Sub-clause 4 of Section 145 Code of Criminal Procedure. clearly provides that in case where dispossessions takes place, the Petitioner has to establish that such dispossession has taken place within the period of two months before the date on which the report of the police officer or other informant was received by the Magistrate.
In view of the above and on perusal of the records, I find that there is no merit in this application and accordingly this revision is dismissed. The interim order of stay stands Vacated.
Both the parties shall appear before the Executive Magistrate on 10th June, 2002.
The learned Magistrate is directed to dispose of the case expeditiously.
Misc. Case No. 67/2002 filed by the Respondent/1st party stands disposed of.