HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1919 OF 2012 & CRIMINAL PETITION No.1735 OF 2012 Dated 9-6-2014 Crl.R.C.No.1919 of 2012.
Between:
K.Vijayalaxmi.
Petitioner.
And:
Shaik Ayesha and another.
…Respondents.
Crl.P.No.1735 of 2012.
Between:
Shaik Khajavali and another.
....Petitioner.
And:
State of Andhra Pradesh represented by its Public Prosecutor, High Court of A.P., Hyderabad and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1919 OF 2012 & CRIMINAL PETITION No.1735 OF 2012 COMMON ORDER:
Criminal Revision Case No.1919 of 2012 is against the orders of Sub-Divisional Magistrate i.e., Revenue Divisional Officer, Nizamabad dated 4-10-2012 passed under Section 145 Cr.P.C.
2. Criminal Petition No.1735 of 2012 is filed to quash F.I.R.No.282 of 2011 dated 1-12-2011 of Police Town V, Nizamabad.
3. Heard both sides.
4. Advocate for petitioner submitted that Sub- Inspector of Police V Town, Nizamabad registered F.I.R.No.304 of 2011 wherein it is clearly stated that first party of 145 proceedings is in possession of the disputed house bearing No.10-10-1113/1A and there is likelihood of breach of peace because of the dispute between first party and second party. He further submitted that Sub- Divisional Magistrate contrary to the said fact observed that the second party is entitled to retain possession till ousted by due course of law. He further submitted that civil dispute is already pending and the Sub-Divisional Magistrate giving such findings with regard to possession is not legal and the same has to be set aside.
5. On the other hand, advocate for second party i.e., first respondent herein submitted that Sub-Divisional Magistrate has every power to pass order under Section 145 Cr.P.C. with regard to possession and therefore, there is no illegality in the order of the Sub-Divisional Magistrate.
6. Before considering the contentions and rival contentions of both parties, it is necessary to refer here section 145 Cr.P.C. which reads as follows:
“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.
(2) For the purposes of this Section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and if possible, decide whether any, and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:
Provided that, if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed, within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
(5) Nothing in this Section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this Section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceedings thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this Section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this Section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107.”
7. From a reading of the above provision, enquiry procedure is contemplated where dispute in respect of land or water is likely to cause breach of peace. In the F.I.R., the Station House Officer observed that there is likelihood of breach of peace and the first party i.e., revision petitioner herein is in possession of the property but the learned Sub-Divisional Magistrate gave contrary findings stating that the second party i.e., first respondent herein is in possession of the subject property and entitled to retain such possession. In the last para of the order, Sub-Divisional Magistrate requested the Sub-Inspector of Police, Town V, Nizamabad to take consequential action and handover physical possession to the second party. If really, second party is in possession of the property, there is no need to make such order requesting the Station House Officer to handover physical possession. This aspect would clinchingly show that second party is not in possession of the property which supports the averment in the F.I.R. As seen from the proceedings of the Sub- Divisional Magistrate, he has not followed the procedure contemplated under Section 145 Cr.P.C. before passing such order. Therefore, as rightly pointed out by the advocate for revision petitioner, the findings of the Sub- Divisional Magistrate in respect of possession of the land in favour of second party i.e., first respondent herein is liable to be set aside and he should be directed to decide the matter afresh after hearing contentions and rival contentions of both parties duly following procedure contemplated under Section 145 Cr.P.C.
8. For these reasons, the impugned order dated 4-10-2012 to the extent of finding in respect of possession of the disputed property is set aside and the learned Sub- Divisional Magistrate shall decide proceedings under Section 145 Cr.P.C. afresh after following the procedure contemplated under Section 145 Cr.P.C.
9. Accordingly, this Criminal Revision Case is ordered.
10. So far as Criminal Petition No.1735 of 2012 is concerned, the allegations in the F.I.R. are that the de facto complainant i.e., second respondent in Criminal Petition No.1735 of 2012 was abused in the name of her caste and also she was beaten and that she was threatened with dire consequences on 14-11-2011 when she requested the petitioners in Criminal Petition No.1735 of 2012 for payment of rent. These allegations have to be investigated and at this stage, correctness of these allegations cannot be decided.
11. Advocate for petitioner in Criminal Petition No.1735 of 2012 made an alternative argument at least to give a direction to police not to arrest the petitioners but such a direction cannot be given in view of specific bar in the Scheduled Castes and the Scheduled Tribes (Prevention of Attrocities) Act, 1989 for grant of anticipatory bail and the direction prayed for indirectly amount to grant of anticipatory bail. Therefore, this Criminal Petition is liable to be dismissed.
12. For the above reasons, Criminal Revision Case No.1919 of 2012 is ordered in terms mentioned supra and Criminal Petition No.1735 of 2012 is dismissed.
13. As a sequel to the disposal of this revision and this Criminal Petition, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 9-6-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISION CASE No.1919 OF 2012 & CRIMINAL PETITION No.1735 OF 2012 Dated 9-6-2014