IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

CRIMINAL PETITION NO.129 OF 2012.

Sri Swapan Choudhury,

Son of K.N. Choudhury,

resident of S. Dohutia Road,

Borpather, P.O. & P.S.

Tinsukia, District – Tinsukia,

Assam.

… PETITIONER

-Versus-

The State of Assam.

Sri Milan Bhattacharjee,

Resident of S. Dohutia Road,

Borpather, P.O. & P.S.

Tinsukia, District- Tinsukia,

Assam.

… OPPOSITE PARTIES

P R E S E N T

THE HON’BLE MR. JUSTICE A.C. UPADHYAY

For the appellant : Mr. K. Agarwal,

Mrs. P. Neog,

Mr. B.N. Borah, Advocates

For the Opposite Parties : Mr. P.J. Saikia,

Mr. A.K. Gupta, Advocates

Date of hearing : 19.4.2012

Date of Judgment : 5.6.2012

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JUDGMENT AND ORDER

This revision is directed against the judgment and order dated

15.2.2012, passed by the learn Additional Sessions Judge (FTC) No.1,

Tinsukia in Criminal (Revision) Case No.03(1)/12, whereby the order

passed by the learned Executive Magistrate, in Case No.257/2011

drawing up proceeding under Sections 107/145 CrPC, was affirmed.

2. The facts unfolded from the pleadings of the parties may be

briefly stated as follows –

The petitioner was served with a notice by the Tinsukia Police

on 27.12.2011, whereby he came to learn that the learned Executive

Magistrate, Tinsukia by order dated 27.12.2011 passed in Case

No.257/2011, drew up a proceeding under Section 107/145 CrPC

against the petitioner, opposite party No.2. In the said impugned

order DATED 27.12.2011 PASSED IN Case No. 257/2011, the learned

Executive Magistrate directed the parties to maintain statusquo and

not to involve in any activity that may vitiate the peaceful

environment until further orders from the competent authority and

also directed to move the Tinsukia Development Authority, for

addressing their grievance. The petitioner further states that the

aforesaid order was passed without notice to the petitioner/opposite

party No.2.

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3. The petitioner upon enquiry found that the opposite party No.2

had lodged an ejahar on 25.12.2011 with Tinsukia Police Station

stating therein that 18 ft. wide road on the western side of his land

situated at S. Dohutia Road, Town Sheet No.5 was encroached upon

by the petitioner by digging the land. It was further alleged in the FIR

that the petitioner had engaged 5 to 6 persons for digging the said

road to fix pillars. When the first informant had requested the

petitioner, the petitioner started abusing him with filthy language and

also threatened him of dire consequences. On the basis of the

aforesaid FIR, Officer-in-charge of the Police Station enquired into the

matter submitted NON FIR Case No.R/Pt.I/147/2011 dated

26.12.2011. The relevant extract of the report of the Officer-in-charge

of the Police in brief reflects as follows-

“During the time of investigation it was found that the First

Party and the Second Party were close neighbours. There was

a road to the house of the First Party where they are residing

and they were using that road. At the time of purchasing the

land by the First Party, the aforesaid road was there and it was

shown in the map of the Tinsukia Development Authority also.

But the Second Party said that the aforesaid road was not there

and as such engaged labourers to dig the road and construct a

building thereon. On enquiring the local witnesses during the

time of investigation, they said that the aforesaid road was

there and at the time of investigation, the second party was

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found digging the road by engaging labourers. But since the

land became disputed, the second party was asked to stop the

work then and there demarcate the parties even to the extent

of death. Hence prayer is made before the Hon’ble Court to

draw up a proceeding under Section 107 CrPC and issue

summon to both the parties to show cause as to why they

cannot reside peacefully and thereafter order them to execute

bond. Further it is prayed that this Hon’ble Court will direct

seizure of the disputed land under Section 145/146 CrPC.

Further enclosing herewith the application of the first party and

land documents of the disputed land.”

4. On the basis of such information, the learned

Executive Magistrate passed the following order –

27.12.2011 : C.R. put up to me on transfer today

27.12.2011. Perused the original petition, police report

along with documents furnished. After careful

examination it has appeared to me that there exist a

dispute between Sri Milan Bhattacharjee, S/O Late

Adinath Bhattacharjee of S. Dahutia Road, Borpathar,

P.S. Tinsukia herein after referred as the 2nd party

regarding a road leading to the residence of 1st party.

The police has reported that the 2nd party is trying to

construct structure in the road. I am satisfied that the

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dispute might lead to breach of peace and public

tranquility and thus proceeding is drawn up U/S

107/145 CrPC.

Issue notice to both the parties to appear in my court

in the next date fixed and to show cause as to why

they should not be asked to furnish bond for keeping

peace until completion of enquiry.

Since the dispute may lead to breach of peace and

public tranquility both the parties are directed to

maintain status quo and not to involve in any activity

that may vitiate the peaceful environment until further

order or orders from higher competent court.

Both the parties are also asked to move Tinsukia

Development Authority for addressing grievance.

Ask O.C. Tinsukia P.S. to furnish schedule of the plot of

land in question before the next date fixed.

Next date fixed 10.1.2012.

5. The main contention of the learned counsel for the

petitioner is that the dispute between the parties is a civil

dispute between two individuals; therefore, there was no

scope at all to entertain and initiate a proceeding under

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Section 145 CrPC, and to pass order and directions to the

parties to maintain statusquo as on date.

6. Learned counsel for the petitioner has pointed out that

by directing the parties to maintain statusquo, the learned

Executive Magistrate has virtually stalled the construction

work, which was going on in the land belonging to the

petitioner. Learned counsel for the petitioner pointed out that

it was a pure and simple civil dispute arising out of personnel

grudge and there cannot be any element of apprehension of

breach of peace in the locality. Learned counsel further

submitted that the learned Executive Magistrate did not

taken into consideration the aforesaid aspect of the matter,

and therefore committed gross illegality in drawing up the

proceeding under Section 145 CrPC and directing to maintain

the statusquo.

7. That being aggrieved by the Order dated 27.12.2011

passed by the learned Executive Magistrate, Tinsukia in Case

No.257/2011 under Section 107 and 145 CrPC, the petitioner

preferred a Revision Petition before the learned Sessions

Judge, Tinsukia on 7.1.2012. The aforesaid case was

registered and numbered as Criminal (Revision) No.03(1) of

2012 and the same was transferred to the file of the learned

Additional Sessions Judge (FTC) No.1, Tinsukia for disposal.

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The petitioner further states that on 7.1.2012, the petitioner

filed two applications along with the aforesaid Criminal

(Revision) No.03(1)/2012, one for the stay of the order

dated 27.12.2011 passed by the learned Executive

Magistrate, Tinsukia in Case No.257/2011 and the other for

admitting the Revision Petition without the copies of the

petition and impugned order of the lower Court.

8. The petitioner states that though 10.1.2012 was fixed

in Case No.257 of 2011 and though the petitioner filed a

petition dated 28.12.2011, the Executive Magistrate did not

pass any order on 10.1.2012. According to the learned

counsel for the petitioner, the FIR was filed on 29.1.2012

(Annexure-6) by the Opposite Party No.2, however, it

transpires from record that the Executive Magistrate, before

sending the records to the Court of the Additional Sessions

Judge (FTC) No.1, Tinsukia had written the order showing it

to have been passed on 10.1.2012.

9. The petitioner states that the learned Additional

Sessions Judge (FTC) No.1, Tinsukia after hearing the parties

in Criminal (Revision) Petition No.03(1)/2012 vide judgment

and order dated 15.2.2012 dismissed the Revision Petition on

the ground that the impugned order dated 27.12.2011 was in

accordance with the provisions of law and as such did not

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suffer from any illegality, impropriety and incorrectness

requiring interference.

10. Learned counsel for the petitioner submitted that

Executive Magistrate, ought to have considered that the

materials collected by the police clearly show that, even if

there was any dispute between the parties than the same

was purely Civil in nature and nothing to do with public

breach of peace. The learned Executive Magistrate, having

failed to take into consideration this important aspect of the

matter, committed gross error of law in drawing up the

proceeding under Section 145 CrPC and directing the parties

to maintain status quo and to approach the Tinsukia

Development Authority, for redressal of their grievances. In

view of above, the entire proceeding of Case No.257/2011

including the impugned order dated 27.12.2011 and other

orders passed therein are liable to be set aside and quashed.

11. Learned counsel for the petitioner pointed out that

there being no existence of apprehension of public breach of

peace, the learned Executive Magistrate did not have the

power and jurisdiction to draw up a proceeding under Section

145 CrPC and to direct maintenance of status quo and direct

the parties to approach the Tinsukia Development Authority

for redressal of their grievance.

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12. Referring to the findings of the learned Additional

Sessions Judge (FTC) No.1, learned counsel contended that is

not based on materials on record, inasmuch as, the learned

Additional Sessions Judge (FTC) No.1, recorded that the

police in its report had submitted that there exist

apprehension of breach of public peace, whereas the police

report dated 26.12.2011 states about apprehension of breach

of peace between the parties. The impugned judgment and

order dated 15.2.2012 having being based on such illegal

and perverse finding, cannot be sustained either on facts or

law and as such the impugned judgment and order dated

15.2.2012 is liable to be set aside and quashed on that

ground alone.

13. Mr. K. Agarwal, learned counsel appearing for the

petitioner submitted that the question of jurisdiction goes to

the root of the matter and in the instant case, on the

materials on record, the learned Executive Magistrate did not

have the power and jurisdiction to draw up a proceeding

under Section 145 CrPC and pass the impugned order dated

27.12.2011 and therefore, the impugned order is illegal in

the eyes of law. According to the petitioner, the learned

Additional Sessions Judge (FTC) No.1 failed to take into

consideration the aforesaid aspect of the matter warranting

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interference to prevent the abuse of process of the court of

law and to secure the ends of justice in exercise of the

Hon’ble Court’s power and jurisdiction under Section 482

CrPC.

14. Learned counsel for the petitioner by referring to the

decision of a single Bench of this Court in Maqbul Hussain

Vs. Syadur Rahman (1986) 2 GLR 167 submitted that the

dispute between the parties is a civil dispute, therefore

exercise of jurisdiction by the Executive Magistrate, under

Section 145 CrPC is illegal warranting interference by this

Court. The relevant extract of the above decision in Maqbul

Hussain(Supra) reads as follows –

“1. It is difficult to obtain an order of injunction in a

civil suit because the party is bound to satisfy the court

that there is a prima facie case, the balance of

convenience tilts in his favour and also to satisfy the

court that if injunction is refused the applicant shall

suffer irreparable injury. So many hurdles are to be

crossed before obtaining an order of injunction. An

order of injunction or prohibitory order takes away

certain rights of the party injuncted. It is indeed

difficult to obtain an injunction, but just throw a

petition and assert that there is apprehension of breach

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of peace in respect of the possession of an immovable

property, claim for drawing up a proceeding assenting

right to posses the property, a proceeding is readily

drawn up under Section 145 CrPC. The proceeding is

initiated no matter whether it is a private dispute

between the parties or it is a dispute which

necessitates drawal of the proceeding for the

maintenance of public order and tranquility.

2. The distinction between the concept of public order,

law and order or public tranquility is to be found in the

picturesque description drawn by Hidayatullah, J, in

Ram Manohar Lohia Vs. State of Bihar, AIR 1966 SC

740. The distinction between the security of State,

public order and law and order, i.e. public tranquility,

has been defined by drawing three concentric circles.

„Public Order‟ comprehends disorder of less gravity

than those affecting „public order‟. One, is to close his

eyes and take three concentric circles. Law and order

represents the largest circle within which is the next

circle representing public order and the smallest circle

represents security of State. It is then easy to visualize

that an act may affect law and order or public

tranquility but not public order just as an act may

affect public order but not security of the State. Public

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order means the even tempo of life of the community

even in a specified locality. Disturbance of public order

is to be distinguished from acts directed against

individuals which do not disturb the society to the

extent of vibrating a general disturbance of public

tranquility. If a party illegally and forcibly occupies the

land of another, people may be shocked and even

mentally disturbed but the life of the community may

keep on moving keeping peace with the even tempo of

life of the community is disturbed or jeopardized, it

may be a case of disturbance of public order and

tranquility. The acts of private parties with affect

personal rights and obligations only but do not disturb

the even tempo of the society are merely private feuds

for which action may not be necessary to be taken

under Chapter X of the Code of Criminal Procedure.

Section 145 of the Code clearly states that to assume

jurisdiction the Magistrate must be satisfied that the

dispute is likely to cause “a breach of peace”. It is not a

breach of mental peace of the parties but apprehended

breach of peace in the locality. Ordinarily, a person

dispossessed of property must sue for recovery of

specific immovable property under Section 5 and 6 of

the Specific Relief Act and if there is threat to

dispossess him he should institute a suit to obtain

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injunction. These are forum for establishing the right of

the litigants. A proceeding under Section 145 CrPC is,

therefore, an extraordinary provision to grant extra-

ordinary relief when there is likelihood of breach of

peace in the locality. The final order of magistrate is

subject to the decision of the civil court. It is,

therefore, seen that private dispute between two

persons which does not disturb law and order or

occasion a breach of the peace in the locality the forum

for getting relief is the civil court of competent

jurisdiction. Now, what I find all around is that just on

some pretext or pretence flood of proceedings under

Section 145 CrPC are entering in courts like flood water

entailing wastage of public money and public time.

Before taking up a proceeding under Section 145 of the

Code the Magistrate must be careful cautious,

circumspect and slow. The quint-essence of the

decision of the Supreme Court in Ram Sumer Puri

Mahani Vs. State of U.P. AIR 1985 472 is to discourage

proceedings under Section 145 of the Code as far as

possible. It is necessary to avoid multiplicity of

litigation which is against the interest of the parties and

in most of the cases public time is wasted over

meaningless and unnecessary proceedings. In Ram

Sumer(Supra) a note of warning has been sounded by

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the Supreme Court that the Magistrate should initiate

proceedings under Section 145 of the Code when the

essential elements of the section are found to be

present in the case. However, these are my passing

observations.”

15. By referring to the decision of the Apex Court in (i) Rajan

Kumar Machananda Vs. State of Karnataka, 1990 (Supp) SCC

132 and (ii) Dharampal and Ors. Vs. Ramshri (Smt.) and Ors.

(1993) 1 SCC 435, Mr.P.J. Saikia ,learned counsel for the

respondent vehemently submitted that the second revision

petition is not maintainable under Code of Criminal

Procedure,1973. In the afore noted decisions it was held that

the second revision petition, after dismissal of the first one by the

Sessions Court, cannot be entertained by the High Court in

exercise of its inherent power under Section 482 of Crpc. The

Apex Court in Rajan Kumar Machananda case(supra) held that

where a revision petition is dismissed by the Sessions Court, a

second revision would not lie to the High Court and the statutory

bar cannot be overcome by the High Court. If that was to be

allowed each revision application not permitted under Section

397(3) of the Code could be considered as one under Section

482. The Apex Court in Dharampal case (supra) held that it is

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now well settled that the inherent powers under Section 482 of

the Code cannot be utilized for exercising powers which are

expressly barred by the Code.

16. In reply to the above submission, Mr. K. Agarwala, learned

counsel appearing for the petitioner pointed out that the ratio

laid down in Rajan Kumar Machananda case (supra) and

Dharampal case (supra) has been overruled by a larger Bench of

the Apex Court (three Judges) in Krishnan and Anr. Vs.

Krishnaveni and Anr. , (1997) 4 SCC 241 and , later on the Apex

Court , followed it in Shakuntala Devi and Ors. Vs. Chamru

Mahto and Anr. (2009) 3 SCC 310. From the ratio laid down by

the Apex Court in the above cases, it clear that second revision

petition by the same petitioner is barred by Section 397 (3) of

CrPc, but the same petitioner is not barred from approaching the

High Court for correcting the palpable errors committed by the

Court below. Though second revision before the High Court

under sub section (1) of Section 397 is prohibited by sub section

(3) thereof, inherent power of the High Court is still available

under Section 482 of the Code of Criminal Procedure and as it is

paramount power of continuous superintendence of the High

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Court .Therefore, the High Court would be justified in interfering

with the order leading to miscarriage of justice and in setting

aside such orders of the Courts below.

17. The purpose of the introduction of Section 397 (3) of

Criminal Procedure Code is to avert a second revision so as to

avoid frivolous litigation, but, at the same time, the right of a

litigant, who had lost before the Sessions Judge, are not

completely closed and in exceptional cases the restriction under

Section 397 (3) can be taken away. The object of Section 482

and the purpose behind conferring the revisional power under

Section 397 read with Section 401, upon the High Court is to put

in constant control over the authority, so as to prevent

miscarriage of justice or to correct anomaly of the procedure or

to meet out justice. In addition, the inherent power of the High

Court is preserved by Section 482. The power of the High Court,

therefore, is very wide. However, the High Court must exercise

such power sparingly and cautiously, when the Sessions Judge

has simultaneously exercised revisional power under Section 397

(1 ). However, when the High Court notices that there has been

failure of justice or misuse of judicial mechanism or procedure,

sentence or order is not correct, it is but the salutary duty of the

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High Court to prevent the abuse of process or miscarriage of

justice or to correct irregularities/incorrectness committed by

inferior criminal court, in its juridical process or illegality of

sentence or order. [See Krishnan case (supra)].

18. In Madhu Limaye Vs. State of Maharashtra: (1977) 4 SCC

551 : 1978 SCC (Cri) 10, a three-Judge Bench was to consider the

scope of the power of the High Court under Section 482 and

Section 397 (2) of the Code. The Apex Court held that the bar on

the power of revision was put in order to facilitate expedient

disposal of the cases, but in Section 482 it is provided that

nothing in the Code, which would include Section 397 (2) also,

shall be deemed to limit or affect the inherent powers of the High

Court. On a harmonious construction of the said two provisions in

this behalf, it was held that though the High Court has no power

of revision in an interlocutory order, still the inherent power will

come into play when there is no provision for redressal of the

grievance of the aggrieved party. On a preliminary objection

raised on the maintainability, the Apex Court held that power of

the High Court to entertain the revision was not taken away

under Section 397 or inherent power under Section 482 of the

Code.

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19. In view of the above discussion, keeping in view the ratio

laid down by the Apex Court in Krishnan case (supra) and

Shakuntala Devi’s case (supra), I find that inherent power of the

High Court can be exercised to prevent the failure of justice or

prevent misuse of power or to correct irregularities committed

by inferior criminal courts. However, when Sessions Judge had

already exercised the jurisdiction, the High Court would sparingly

and cautiously must exercise powers of revision under Section

482 CrPC. In the light of the above discussion, it would be

appropriate for this Court to see, as to whether there are

substantial slips and errors, in the orders passed by the learned

Court below. Whether the orders have been passed by the

learned Courts below in breach of the recommended procedure

and manner,. Whether the learned Courts below, while drawing

up the preliminary proceeding under Section 145 of Crpc and in

passing the impugned order failed to decide as to whether the

dispute is a civil dispute in between the parties .

20. There is no denial of the fact that the learned court below

while drawing up a proceeding took into consideration the

provision of as laid down under section 145 CrP C .

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Section 145 of CrPC reads as follows:

"145. Procedure where dispute concerning land or water is likely to cause breach of peace- (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

21. On careful consideration of the materials on record it is

seen that challenge to the question of jurisdiction goes to the

root of the matter and in the instant case, I find that the

learned Courts below failed to consider and examine all

relevant aspects and fundamental requirements of the

provision of Section 145 Cr.P.C ,before deriving satisfaction,

regarding existence of dispute likely to cause a breach of the

peace in the locality concerning any land or water or

boundaries thereof. Therefore, the impugned order warrants

interference by this Court.

22. Accordingly, the impugned orders are hereby

set aside. The Case No. 257 of 2011, pending before

the learned Executive Magistrate, Tinsukia is

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remanded, for taking up the matter afresh in

accordance with law. However, the learned

Executive Magistrate on receipt of the copy of this

order shall issue notice to both the parties and after

hearing both the Parties to the proceeding, pass

appropriate order in accordance with law.

23. With the above direction and order this revision

petition is disposed of. Send a copy of this order to

the learned court below.

JUDGE

TDR

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