KASTURI PRASAD MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision petition has been preferred against the order dated 10.3.1993 passed by the Executive Magistrate, Dhamdaha, in Case No. 145-M of 1985 by which the learned Magistrate has dropped the proceeding under Section 145, Cr PC.

(2.) There is a chequered history of the case. There are two plots of land appertaining to 563 and 564. According to the petitioner-Ist party, 563 plot is his raiyati khatiani land and plot No. 564 was settled to him through basgitparcha. On the other hand, the 2nd party respondents are also claiming the land from he very beginning. At the time of issuance of basgitparcha the respondents had raised objection before the authorities. In the petition filed by the Ist party, he categorically admitted that some portion of those two plots had already been dispossessed by the respondents. A police report was called for and in the police report also, the dispute between the parties about their rights and possession have been stated to be existing and as such there was definitely apprehension of breach of peace. But, the schedules given by the Ist party petitioner in his initial petition and properties mentioned by the police in its report had some difference regarding the area and the boundary itself. The proceeding was drawn up long back in the year 1985, vide order dated 9.4.1985 and in the schedule as mentioned in the order-sheet itself no boundary has been mentioned and only vague area towards south has been mentioned in both the plots. While in the initial petition the Ist party had mentioned about 4 decimals of land in each of the plots to be the disputed plots. So at the very beginning, there remained vagueness about proceeding land. Moreover, in the petition itself the Ist party had admitted that he has been dispossessed from a portion of it by ihe respondents. The period he had mentioned in the petition to be recently but whether that is beyond two months or not, could not be proved as is revealed from the impugned order itself. Previously also, there was dropping of the proceeding by the Executive Magistrate on the ground that when both the parties were claiming right to have basgitparcha then he was having no jurisdiction to cancel the basgitparcha or grant to anybody. The proceeding cannot be maintainable and as such dropped.

(3.) On a revision being preferred before this Court, a single Bench of this Court has rightly held that the Executive Magistrate committed error of law. While sitting to decide a proceeding under Section 145, Cr PC, the Executive Magistrate has been given the authority under Chapter X of the Code of Criminal Procedure to declare possession till these rights are being decided by the competent Court only for the purpose of observing peace and tranquility and to minimize the apprehension of breach of peace. So the possession is the only point for the purpose of decision under Section 145 of the Code of Criminal Procedure. But, there are other sub-sections by which an Executive Magistrate has got authority to drop a proceeding. It during the course of proceeding the Executive Magistrate comes to the finding that there was no apprehension of breach of peace then also he can drop the proceeding. If the Executive Magistrate is not in a position to find out the physical possession of either of the parties he can proceed with under Section 146 of the Code of Criminal Procedure. But, if at the initial stage, the proceeding has been drawn up in respect of a vague land then the question of declaration of possession in favour of either of the parties cannot arise even. In a vague land if any declaration is being made regarding possession or putting up possession if dispossession being made within two months next prior to the initiation of the proceeding then the same would only invite further apprehension of breach of peace while the Executive Magistrate has been given power under Chapter X to stop such apprehension of breach of peace.