CHANDRIKA MISHRA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS is an application under Section 482 of the Code of Criminal Procedure for quashing the entire proceeding, including the order dated 26.10.2002, passed by the learned Sub -Divisional Magistrate, Chatra, in Case No. 68 of 2002, whereby, he has converted the proceeding under Section 144 of the Code of Criminal Procedure into a proceeding under Section 145 of the Code of Criminal Procedure, though earlier proceeding in respect of the same property and in between the same parties, initiated vide Case No. 36 of 2002, was dropped on 13.8.2002,with the observation that the opposite party may take recourse of Civil Suit, relying on a decision, reported in 2001(1) JCR 21 (Jhr.) [: 2004(4) JLJR 493], Kangali Charan Goswami V/s. State of Bihar & Ors.

(2.) IT appears that regarding the land in question of plot No. 65, partaining to khata No. 28, measuring 1.12 Acres, out of 2.40 Acres of land of Village Pachmo, Police Station -ltkhori, there was a proceeding under Section 144 of the Code of Criminal Procedure. In that proceeding, both the parties appeared and filed their show causes, claiming the property in question by virtue of inheritance and succession. The claims of the parties were such that it could not have been decided in a proceeding under Section 144 of the Code of Criminal Procedure, as serious question of title was raised. Accordingly, the learned Sub -Divisional Magistrate, Chatra, by order dated 13.8.2002, dropped the proceeding, initiated by opposite party No. 2, Baikunth Mishra and others, with observation that they may seek their remedies before the appropriate Civil Court. However, again opposite party No. 2 (1st party) made application before the learned Sub -Divisional Magistrate, Chatra, for initiation of a proceeding under Section 144 of the Code of Criminal Procedure against these petitioners in respect of the same properties. The learned Sub -Divisional Magistrate registered case No. 68 of 2002 and initiated a proceeding under Section 144 of the Code of Criminal Procedure, by order dated 29.8.2002. These petitioners have been served with notice dated 26.10.2002 to appear and filed their written statement(s) in respect of their claim regarding the disputed lands.

(3.) OPPOSITE party No. 2 Baikunth Mishra filed a petition before the learned Sub -Divisional Magistrate, Chatra, alleging therein, that there is apprehension of breach of peace regarding claiming of possession over the land, measuring 1.12 Acres of Plot No. 65, pertaining to khata No. 28 of Village Pachma, Police Station, Itkhori.The learned Sub -Divisional Magistrate having apprehended immediate danger and nuisance, just to restrain either of the parties to go over the disputed plot, started a proceeding under Section 144 of the Code of Criminal Procedure, only to maintain peace and after hearing both the parties, when they appeared, he found a case regarding claiming of possession over the disputed plot by both the parties. As such, proceeding under Section 144 of the Code of Criminal Procedure was converted into a proceeding under Section 145 of the Code of Criminal Procedure is an executive order, only to maintain peace for the safety of human life or to restrain any riot or affray but when there is a claim and counter claim over the land in question, as in the present case, wherein both the parties are claiming the land by virtue of inheritance and succession cf the ancestral properties, there is apprehension of breach of peace. Sec. 145(1) of the Code of Criminal Procedure provides as follows: