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The Code Of Criminal Procedure, 1973
Section 144 in The Code Of Criminal Procedure, 1973
Section 145 in The Code Of Criminal Procedure, 1973
The Indian Penal Code
Section 144(2) in The Code Of Criminal Procedure, 1973

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Orissa High Court
Lachhaman Mallick And Ors. vs Nisakar Mallick And Ors. on 8 February, 1999
Equivalent citations: 1999 I OLR 467
Author: P Mohanty
Bench: P Mohanty

JUDGMENT

P.K. Mohanty, J.

1. The petitioners, .who are second party members in a proceeding Under Section 144, Cr.P.C, have challenged the preliminary order dated 8.12.1998 passed by the Executive Magistrate, Kujang restraining them and the first party members from entering upon the disputed land and directing them to appear on the date fixed.

2. The short fact of the case of the parties was that the opposite parties as first party members filed a petition before the learned Executive Magistrate, Kujang for initiation of a proceeding Under Section 144, Cr.P.C. pleading inter alia that the scheduled lanids stood recorded in the name of one Dharamu Mallick as a tenant under the Deity Sri Binod Kumari Thakurani during 1930 settlement. After the death of Dharamu, because of the dissention between the parties with regard to possession of the scheduled land, a settlement was made by the gentlemen of the village on 11.11.1960. The first party members being share-holders and successors of Dharamu Mallick were allowed to possess half of the scheduled land and the second party members being the legal heirs of Panu Mallick were allowed half share in the scheduled property. On the basis of the compromise both parties possessed the scheduled land half and half. But since Panu Mallick remained outside and failed to discharge his obligation of 'seva puja' of the Thakurani, the first party member with the help of villagers took all charges of Thakurani and did all Seva Puja and enjoyed the usufructs of the whole property and remained in possession till date. In the year 1979, Crl.Misc. Case No. 199 of 1979 and Crl.Misc. Case No.' 238 of 1979 were decided against the petitioners. During the current year, paddy crops and Biri were raised in the scheduled land, which are ripe for harvesting. There is also fish pond and hutment in the scheduled land, but the second party members-petitioners having no possession over the disputed land and having no right, title and interest, being goonda and roudy nature they have tried to dispossess the first party members by threatening to cut paddy and crop and to catch fish and destroy the hutments forcibly, there is apprehension of breach of peace between the parties. A prayer was made in the petition as would be revealed from the complaint petition itself to initiate a proceeding Under Section 144 Cr.P.C. restraining the second party members and their henchmen not to go upon the disputed land and to declare the possession of the first party members absolute. A copy of the petition has been annexed to this petition as Annexure-1 and the prayer may be quoted hereunder :

"It is therefore prayed that your honour may be graciously pleased to initiate a proceeding Under Section 144, Cr.P.C. restraining the second party members and their henchmen not to go upon the disputed land and after hearing the possession of the 1st party members be declared absolute.

And for which act of your kindness, the 1 st party petitioners as in duty bound shall ever pray."

It appears that the learned l:\ccutive Magistrates called for a police report pursuant to which the report was submitted by the Paradip Lock outpost. The police report revealed that Biri crop is grown in the scheduled land, which is at the stage of harvesting and there is fish pond and both the parties are trying to catch fish and harvest Biri from the land. There is every possibility of apprehension of serious breach of peace like murder, rioting between the parties, if preventive measures are not taken.On the basis of the police report, the learned Executive Magistrate, by his order dated 8.12.1998 under Annexure'-3 restrained both the parties from entering upon the disputed land and to appear on 21.12.1998.

3. Sri A. K. Bose, learned counsel for the petitioners, submitted that initiation of a proceeding Under Section 144 Cr.P.C. was illegal and misconceived. The opposite parties, who are the first party members before the learned Magistrate filed Title Suit No. 53/98/7/95 in the Court of the Civil Judge (Junior Division), Kujang for permanent injunction restraining the present petitioners and having lost the suit on contest and the learned Civil Judge having found that the petitioners are the Marfatdars of the Deity and legal heirs of Panu Mallick and the name of the ancestors of the petitioners were duly recorded in the record-of-rights, the opp. parties herein who are the first party members before the learned Magistrate had io manner of right, title and interest or possession over the disputed land. The opp. parties being aggrieved with the dismissal of the suit with the finding in favour of these petitioners with regard to their right, title and interest and possession, has preferred Title Appeal No. 10 of 1998, which is pending adjudication and therefore it is contended that in view of the decision of the Civil Court and pendency of the appeal, the application for initiation of a proceeding Under Section 144 Cr.P.C. is misconceived and ought not to have been entertained by the learned Magistrate.

4. Mr. H. Mohanty, learned counsel for the opposite parties however contended that the opposite parties being in possession of the properties and the petitioners having created disturbance in their lawful possession and there being apprehension of serious breach of peace, they had no other alternative than to approach the Executive Magistrate for an order Under Section 144, Cr.P.C. It is further contended that in view of the provision of Sec. 144(5) Cr.P.C. empowering the Magistrate to rescind or vary the order passed Under Section 144(2), Cr.P.C, the petitioners ought to have approached the Magistrate and that having not been done, the present revision is not maintainable. It is further contended that the opposite parties have filed an application under Order 39, Rules 1 and 2, C.P.C. before the appellate Court, but no order having been passed inasmuch as pendency of civil proceeding is no bar for initiation of a proceeding Under Section 145, Cr.P.C.

5. Power Under Section 144, Cr.P.C. is intended to be exercised in case of urgency of situation for prevention of imminent breach of public peace and tranquility and the order has to be regarded as an executive order passed in performance of an executive function, where no adjudication is made with regard to any right between the parties to the litigation. The basis of an action Under Section 144, Cr.P.C. is the consideration of urgency of the prevailing situation and that power is to be exercised for preventing disorder, obstructions and annoyance with a view to secure public peace and tranquility. The order Under Section 144, Cr.P.C. therefore is intended to meet the emergent situation only. Section 145 Cr.P.C. however is intended for resolution of a situation where there is likelihood of a breach of peace because of a dispute concerning land and water. The jurisdiction however has nothing to do with the determination of right to possession or title, which has to be agitated in the Civil Court. The jurisdiction of the Criminal Courts is restricted to prevention of apprehended breach of peace by declaring the party in possession to be entitled to remain in possession until the right of the parties are determined by a competent Civil Court. Once the Civil Court declares the rights of the parties, it is not open to a defeated party to approach a Criminal Court to nullify the decree. In both the cases, the Executive Magistrate has to record his satisfaction with regard to the existence of the condition for exercise of his powers.

6. On a bare reading of the petition to initiate the proceedings Under Section 144, Cr.P.C. it is manifestly clear and otherwise undisputed that the apprehended breach of peace is solely due to the dispute with regard to possession of the scheduled land and harvesting of the Biri crop and catching of fish. Both the parties are claiming right, title and interest or possession over the disputed land inasmuch as the petition itself discloses that there is a, compromise for possession of the disputed properties half and half, which is also disputed by the petitioners. The police report annexed to the petition as Annexure-2 is vague inasmuch as it disclosed that both the parties are trying to harvest the crop and catch fish for which there is apprehension of breach of peace. Interestingly, the report of the Officer-in-charge, (Annexure-2) in the penultimate paragraph reads : "This year there is grown paddy crops i.e. BIRI over the said scheduled land which are now at the stage of harvesting. There is also a fish pond in the scheduled land. Both the parties trying to catching the fish from the pond of scheduled land and harvests the biri of the land. There is every possibility of apprehension of serious breach of peace like murder, rioting etc. between both the parties if preventive measure will not be taken."

In view of the pleading and the submission of the first party members who are .opposite parties herein, there is nothing to indicate that immediate prevention or speedy remedy was desirable to prevent damage to human life, health or safety or disturbance of a public tranquility or a riot or affray as is required Under Section 144(1) of the Code. Ex parte order is desired and contemplated under Sub-section (2) of Section 144, Cr.P.C. in case of emergency and where the circumstances do not admit of service in due time by a notice upon the person against whom the order is directed. The Executive Magistrate is required to pass a written order stating the material facts of the case upon which he was satisfied that there is apprehension of serious breach of peace and to prevent such breach of peace, the order is passed.

The order passed by the Executive Magistrate reads thus :

"Perused the petition of the 1st party along with report of the Paradeep Lock O.P. It is revealed that a dispute likely to cause eminent breach of peace between the parties in connection with the possession of the land within the local limits of my jurisdiction. I am satisfied that there is every possibility of serious breach of peace between the parties.

I therefore order Under Section 144, Cr.P.C. that the members of both the parties are restrained to enter upon the disputed land and are also directed to appear before me on 21.12.1998.

Land Schedule

Village Khata No. Plot No. Area

Jhimani 248 866 Ac. 0.73

249 730 Ac. 0.76

Ac. 1.51.

The order does not disclose that the learned Magistrate has applied his mind and was satisfied and recorded the material facts in the ex pane order passed on 8.12.1998. The contention with regard to the maintainability of the petition without resorting to the provision of Sub-section (5) of Section 144,Cr.P.C. has to be rejected in the facts and circumstances of the case. The opposite parties from time to time admittedly have been approaching the Criminal Court for an order Under Section 144 and the allegation is that by the strength of the restraint order, the opp. parties have been harvesting the crop and enjoying the usufucts. The civil suit filed by the opp. parties have been decided against them and the appeal is pending. The application under Order 39, Rules 1 and 2, C.P.C. has been filed but without moving the application and obtaining the appropriate order, the opp.parties as first party members approached the Criminal Court in a petition Under Section 144, Cr.P.C. and obviously to avoid the Civil Court order passed against them. There may be no absolute bar for approaching a Criminal Court in a given situation, but in the facts and circumstances of the case, resorting to such a method that too during the harvesting cannot be a bonafide exercise of one's right.

7. In any view of the matter, if at all an order in the facts and circumstances of the case was required, it ought to have been Under Section 145, Cr.P.C. since the sole dispute is with regard to possession of the land and the pond concerning harvesting of the crop and catching of fish, for which there was apprehension of breach of peace. The ingredients and requirements of Section 144, Cr.P.C. is squarely absent in the present case as discussed earlier and the order of the Executive Magistrate suffers from non-application of mind to the facts of the case and the provision of law. Needless to mention here that the order was passed on 8.12.1998 and therefore the validity of the order otherwise also shall lapse on completion of two months.

In that view of the matter, the impugned order cannot be sustained and therefore is quashed. The Criminal Revision is allowed accordingly.