Section 145 of Cr.P.C : Better option in case of forcible Dispossession?

Anik Das: Section 145 of the Code of Criminal Procedure reads as follows

“Procedure Where dispute concerning land etc. is likely to cause breach of peace….”

While going through this section I had some question in mind which I have asked this particular section is that is the section merely an option or a better option in case of forcible dispossession? The answers I found are as follows:

Why this Section is put into the Code of Criminal Procedure?

Whenever a breach of peace is likely to happen regarding any land or water or the boundaries  thereof and the information by the police or any other sources is provided to the District Magistrate or any Executive magistrate empowered by the Govt. specially for this issue within his local jurisdiction he shall make a statement 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 pleaders within a time to be fixed such Magistrate.

So it is clear that the section here is put to the Act so to prevent any dispute between parties and to maintain peace. It is also for speedy remedy concerning possession of land and for the breaches of peace arising out of bonafide disputes relating to immovable property.

What are the objectives of this section?

The main object of this section is to enable an Executive Magistrate to intervene and pass a temporary order in regard to the possession of the property in dispute having effect until the actual right of one of the parties is determined by the competent civil court. So the object here is to prevent the breach until the rightful owner of the property is taking the possession.

In the Case of Dr. Aktar Ali V. The State (22 DLR 307 WP), the Court was of the view that Principal object of section 145 Cr.P.C is two-fold:

1. To prevent the breach of peace over land and water

2. To restore the possession of the same to the party found to have been forcibly or wrongfully dispossessed within the two months next before making the preliminary order.

When a Magistrate can rule under this section?

There are three elements to be taken into consideration while deciding an act can be or not tried under this section. a) A dispute b) relating to possession of the land c) likely to cause breach of the peace and the Magistrate gets jurisdiction to intervene whenever he is satisfied that this elements are in existence (13 DLR 138 SC). Therefore neither the High Court Division nor the Sessions Judge has the power to order a Magistrate to take proceeding under this section(34 CWN 82).

It is only the Magistrate who can take action under this section. The jurisdiction of the criminal court is very limited one and is carefully restricted to a prevention of the apprehended breach of the peace.

What is the nature of the proceedings under this section?

In (27 Cr. LJ 174) the Court decided that the nature of the proceedings is quasi-judicial, quasi-administrative in nature. This section is often misapplied and the Magistrate should be careful about to see that the criminal courts are not used by the parties to settle civil disputes.

Who are the parties?

In Cases of Abul Farah Molla V. A.K.M. Mozammel Haq Sikder (27 DLR 260) and Shahab Uddin V. Yunus (21 DLR 175) the Court noted that Section 145 Cr.P.C deals only with possession. Parties in possession or persons claiming to be in possession are the only necessary parties in the dispute. The words ‘parties concerned in such disputes’ mentioned in the section 145(1) Cr.P.C refer only to person claiming to be in possession or persons who are concerned as claiming to be in possession.

What is the subject matter to be judged?

This section only deals with possession of the immovable property. It does not provide any declaration regarding rights to the property or claim over the property. In the matter of Haji Golam Hossain V. Abdur Rahman Munshi (40 DLR 196 AD), Court decided that the purpose or subject matter under the section 145 Cr.P.C is to find the possession of the property.

So it is clear that this section only deals with possession of the property. If anyone is forcibly or wrongfully dispossessed from the property then the party can plead before a Magistrate mentioned before to repossess his property. But this section does not concern itself with the right, interest or title of property but only to possession of the property.

Possession here means Actual physical possession. Law will protect the party in possession but possession taken in defiance of law will not be allowed.

In case of Civil Suits?

The Decrees or orders of Civil Courts relating to possession ought ordinarily to be respected and given effect by the Magistrate unless and until there is something shown to the Magistrate which induces him to hold that subsequent to delivery of possession something has happened which had the effect of dispossessing the party to whom the possession was delivered. It is the duty of the Magistrate to maintain the possession not to maintain a decree.

In order to binding the decision of a Civil Court over a Magistrate three things are necessary

1. The decrees must be recent
2. The decrees must be passed between the same parties
3. The decree or order of the courts given must be regarding possession of the property.

When a civil suit is pending regarding a property it is not wise to start a case under section 145 but it is nowhere provided that one cannot start a suit

In Md. Shahabul Huda V. Md. Shafi (36 DLR 44 AD) when a Civil Court is in session of the subject matter of the dispute and has passed an order regulating its possession etc. Criminal Courts jurisdiction under section 145 Cr.P.C. to interfere with such matter is ousted and as such any order of attachment regarding the property under section145 is illegal.

In case of joint possession?

In case of joint possession, then it is clear that no order can be made regarding the possession under section 145 of Cr.P.C.(22 Cr LJ 625) .

Disobedience to the order?

After any order is made by the Magistrate declaring the possession to be given to any party is binding upon the parties. Any disobedience or violation of that order would be punishable under section 188 of the penal code 1860.Revision lies before the Sessions judge or High Court Division against the preliminary order as well as the final order.

Anik Das: Student; Department of LAW, University of Chittagong

Sources:

1. Huq,Zahirul, “Law and Practice of Criminal Procedure, 16^th BLBC, Bangladesh.
2. Halim, Md. Abdul, “Text Book on Code of Criminal Procedure.” 4^th CCB Foundation, Dhaka.
3. RatanLal and DhirajLal, “ The Code of Criminal Procedure, 16^th Wadhwa and Company Nagpur, India, 2002.