TARULATA DEVI Vs. NIKHIL BANDHU MISHRA

JUDGEMENT

(1.) THE criminal revision is an off -shoot of a proceeding Under Section 145 of the Criminal P.C. for short "the Code".

(2.) THE object of Section 145 of "the Code" is to prevent breach of peace and for that end to provide a speedy remedy by bringing the contending parties before the Court and ascertaining who of them was in actual possession, to maintain status quo until their rights are finally determined by a competent court. The life of the order is conterminous with the passing a decree by Civil Court and the moment the Civil Court makes an order of eviction the final order of the Criminal Court stands superseded. The section authorises a Magistrate to issue a declaratory order in favour of the party that he is entitled to possession "until evicted therefrom in due course of law". The Magistrate does not decide or purport to decide a party's title or right to possession of the land as these areas are especially reserved for the Civil Court. The foundation of assumption of jurisdiction is an apprehension of breach of the peace. The Magistrate makes only a temporary order irrespective of the rights of the parties which will have to be agitated and determined in the manner provided by law. Under Section 145(1) the jurisdiction of a Magistrate is exclusively limited to decide whether any and which of the parties was, on the date of the preliminary order, in possension of the land in dispute. The order only declares the actual possession of a party on the specific date.

(3.) BEING aggrieved by the order the petitioners 2nd party preferred a revision before the Sessions Judge, Cachar at Silchar who set aside the order on the grounds that (1) - the Magistrate not only declared possession of the land and house in favour of the 1st party but ordered the 2nd party to be thrown out from the land and house by Police within 24 hours (2) the Magistrate converted the proceeding under Section 144 into under Section 145 Cr. P.C. on 4 -2 -1980 which was beyond 2 months from the date of the alleged dispossession (vide para 5 of the learned Judge's order), presumably the learned Judge thought that the Magistrate had no jurisdiction to restore possession under proviso to Section 145(4) read with Sub -section (6); (3) that before initiation of the proceeding under Section 145 Cr. P.C. the learned Magistrate held a local enquiry under Section 310 Cr. P.C. According to the learned Judge these were sufficient for setting aside the order without entering into the merits of the case. However, the learned Judge held that the court below had gone wrong in deciding the rights of the parties and did not decide the question as to who was in possession on the date of drawal of the proceeding. The learned Judge also held that the Sale Deed and the Jamabandi were not considered by the learned Magistrate. The learned Judge concluded -