INTRODUCTION:Land disputes has to be adjudicated upon by the Civil Court because these issues are Civil in nature i.e. between two parties on a civil issue example possession of the land, tittle of the land etc. What happens when in some cases the party involve violence to possess the land, or breach the peace, in such a case the law provides for an alternative Criminal proceeding under section 145 CrPC, to prevent such things which may breach the peace to happen, to protect the interest of the party in a fair and just way.
- A purely civil dispute arising out of a contractual relationship between the parties cannot be converted in a criminal offence in order to get favourable results.
In the case of Hriday Ranjan Prasad Verma & Ors. v. State of Bihar & Anr. the court held that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
There is only one provision in CrPC which empowers the magistrate to proceed under criminal proceedings in matters involving mainly land disputes, that is Section 145 CrPC and its complimentary sections i.e. 146/147/148 CrPc.
Section 145 of the Code of Criminal Procedure provides for a preventive measure empowering the Executive Magistrate to proceed with Criminal proceeding on the issues concerning the land and water. Supreme Court in the Case R H Bhutani v. M H Desai expressed the preventive nature of the section 145 CrPC.
Sub-section 2 of section 145 CrPC defines the expression “land and water” as buildings, markets, fisheries, crops or other produce of land, and the rent or profits of any such property.
The section empowers the Executive Magistrate to direct the parties to attend his court, if he is satisfied from the report of the police or any other information that the dispute is likely to cause a breach of peace.
Let us understand it with the help of an example: –
Two parties ‘A’ and ‘B’ have a fierce dispute concerning a piece of land.
‘A’ come to ‘B’ along with other men holding deadly weapons and threatens him that he will come on Monday and will forcibly capture the land and shoots some shots with the gun in the air.
‘B’ also being a short-tempered person warns ‘A’ come on Monday try to capture the land and shot some round of gun in the air too.
In such a case it is very likely possible that the party may get into deadly fight. Hence in such a case if the Executive Magistrate is satisfied by the report of the police or any other information that breach of peace is likely to be caused, he can direct the parties to attend his court and present before him the written submission of the matter.
The Executive Magistrate shall make an order stating the grounds on which he thinks and is satisfied that the breach of peace is likely to be caused.
Section 145 CrPC do not empowers the magistrate to decide upon the tittle of the case, so the magistrate do not have to look into the merits of the written submission, but to restore the possession of the party by the material produced before him, shall order whether any or which of the party to reinstate possession. Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully was made to leave the possession within two months next before the date on which the report of the police officer or other information was received, or after that date and before the date of his order, he may treat the party so was made to leave as if that party had been in possession on the date of his order.
Two essentials must be fulfilled in order to start the proceedings under section 145 CrPC
- Dispute is over a land between the parties.
- Dispute is of fierce nature that it is likely to cause breach of peace.
It is important to note that the judgments under section 145 CrPC are not subject to review but revision.
Surinder Pal Kaur And Another v. Satpal And Another The appeal is allowed, and the impugned order is set aside. The matter is remitted to the High Court for fresh adjudication under revisional jurisdiction.
In a case where the dispute is also pending before the Civil Court, and two above essentials are fulfilled, the Magistrate can proceed accordingly under section 145 CrPc, but his order is subject to the orders of the Civil court. Example if the Civil Court makes an Interim order that particular party shall be prohibited to take possession until the final decision, the Magistrate proceeding under section 145 CrPC is bound to such an order.
Similar is the section 146 CrPC in which the magistrate proceeding under section 145 CrPC can attach the subject of dispute if he is unable to satisfied that which of the parties is then in possession; Section 147 CrPc is also similar and on the question of the right of use of land and water.
Under section 148 CrPC the District Magistrate or Sub-divisional Magistrate may depute any magistrate subordinate to him to make a local inquiry for the purpose of section 145/146/147 CrPC.
But the courts in recent judgments are of the view that if the dispute is pending before the Civil Court, protection can be availed from that court and section 145 CrPC cannot be used as an alternative to take the possession.
Kuldip Singh vs State of Haryana And Ors on 19 November, 2019 Punjab and Haryana High Court has ruled that proceedings under Section 145 cannot be used as a tool to get possession of the land on the basis of title. Executive Magistrates on whom the powers have been conferred under Section 145 of the Code, are expected to adjudicate upon the question that which party is in possession or if any party has been dispossessed two months before the date of initiation of proceedings, then restore the possession of party so dispossessed forcibly. The proceedings under Section 145 of the Code are sub-subservient to adjudication by the civil court and it has been repeatedly held that if civil suit is pending, the Executive Magistrate normally should not initiate proceedings under Section 145 of the Code and relegate the parties to file an application before the civil court in a pending suit particularly when in the civil suit such order as may be necessary can be passed. Reference in this regard can be made to Amresh Tiwari Vs Lalta Prasad Dubey and another (2000)
In copious amount of cases the Courts have seen the order of the Executive Magistrate proceeding under section 145 CrPC giving impugned judgments when the dispute is pending in the Civil Courts, and the appellate court or the Courts having jurisdiction upon the matter have to set aside the impugned judgments. Even though various High courts and Supreme Court pronounced various judgments over the issue and the picture is almost clear. Still due to various factors, the same type of impugned judgments can be seen in the courts.
Mahant Ram Saran Dass v. Harish Mohan And Another
The short question that arises before the Supreme Court for consideration is whether in the facts and circumstances of the present case, a civil suit for declaration being pending before the competent forum, the civil court, the respondent was entitled to invoke the jurisdiction of the Magistrate under Section 145 CrPC, and the Magistrate was entitled to initiate the proceedings and pass any interim order of appointment of receiver therein. It is not disputed that in the civil suit itself the court has passed interim order of injunction and put certain restrictions on the parties with regard to alienation of the property in question. It is true that the applicant before the Magistrate, has not been arrayed as party-defendant in the civil suit, but that will not alter the position in any manner since in our view the civil court being in seisin of the matter, any appropriate relief could be obtained from the civil court itself and the Magistrate had no jurisdiction in the case in hand to entertain the application under Section 145, and to pass any orders thereon. In the circumstances, the impugned order of the High Court as well as the proceedings initiated before the Magistrate under Section 145 CrPC stand set aside. The appeal is disposed of accordingly. Needless to mention the status quo as of today to be maintained to enable the parties to move the civil court for appropriate orders.
Criminal justice system is made to deliver justice to the innocent and punish the offenders. In many cases where the matter is of civil nature, the filing of misconceived criminal proceedings is used as a bargaining chip to pressurize and threaten the accused to enter into a settlement. In order to protect people for these kind of situations High courts and Supreme Court have laid down various judgments. In cases of 145 CrPc it is now a clear precedent that if the matter is pending before a Civil Court the protection can be granted by the same court and the magistrate shall not take up the matter but restate the matter to the concerning court in which the civil dispute is pending. But still in some cases of emergency and when the Civil Court may not be approached in emergency, the breach of peace is likely to be caused, magistrate on the facts and circumstances of the case shall proceed under section 145 CrPc. The magistrate has not to decide on the issue of title of the land but shall reinstate the possession of the party so he is justified had according to the material present before him. But in the cases where no Civil Case is pending and not yet registered, the Magistrate is free to proceed as according to the section 145 CrPC.
The Code of Criminal Procedure, 1973
- Hriday Ranjan Prasad Verma & Ors. v. State of Bihar & Anr.,4 SCC 168
- G. Sagar Suri v. State of U.P., 2004 CriLJ 212, 106 (2003) DLT 439
- R H Bhutani v. M H Desai, 1968 AIR 1444, 1969 SCR (1) 80
- Surinder Pal Kaur And Another v. Satpal And Another, (2013) 3 LAWHERALD 1937
- Kuldip Singh vs State Of Haryana And Ors on 19 November, 2019, CRM-M-22030-2019
- Amresh Tiwari Vs Lalta Prasad Dubey and another,  INSC 256, [2001(1) JLJR 106 (SC)]
- Mahant Ram Saran Dass v. Harish Mohan And Another, 2001 (1) JIC 381 (S.C)
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