Case Background
This case arises out of a long-running dispute over land measuring about 23 decimals in village Harnaut, District Nalanda. There was serious tension between two sets of private parties, leading to apprehension of breach of peace.
Initially, a preventive proceeding was started under Section 144 of the Code of Criminal Procedure (Cr.P.C.) against both sides. Later, this proceeding was converted into one under Section 145 Cr.P.C., which is used when there is a dispute concerning land or water that may cause breach of peace.
In Case No. 804 (M.P.)/1993, the Executive Magistrate, Nalanda at Biharsharif, after considering written statements and oral evidence from both sides, passed an order on 02.12.1993 under Section 145 Cr.P.C. He declared the second party (now opposite parties) to be in possession of the disputed land.
The present petitioners, who were the first party before the Executive Magistrate, challenged that order by filing Criminal Revision No. 519 of 1993 before the 6th Additional Sessions Judge, Nalanda at Biharsharif. On 04.08.2009, the revisional court set aside the Executive Magistrate’s order holding it to be without jurisdiction. A copy of this order was filed as Annexure-3 in the present proceedings.
Out of the three second parties before the Magistrate, only two (now Opposite Party Nos. 2 and 3) challenged the revisional order dated 04.08.2009 by filing Criminal Revision No. 459 of 2010 before the Patna High Court. The third second party, now Opposite Party No. 4, was not made a party in that revision.
Criminal Revision No. 459 of 2010 was initially dismissed on 20.01.2013 for want of prosecution. It was later restored by order dated 25.10.2013. The petitioners now allege that this restoration was done without notice to them. On remand, the revisional court again heard the matter and ultimately, on 01.02.2016, in Criminal Revision No. 519 of 1993, affirmed the Executive Magistrate’s original order dated 02.12.1993 declaring possession in favour of the second party.
The first party then approached the Patna High Court by filing Criminal Miscellaneous No. 19349 of 2016 under Section 482 Cr.P.C., seeking to quash the revisional court’s order dated 01.02.2016 as well as, in substance, the underlying order under Section 145 Cr.P.C.
What the Court Examined and Decided
The Patna High Court, presided over by Hon’ble Mr. Justice Shailendra Singh, examined the entire history of the preventive proceedings, the orders passed by the Executive Magistrate, the revisional court, and the arguments made on both sides.
Counsel for the petitioners argued that the Executive Magistrate exceeded his jurisdiction under Section 145 Cr.P.C. They said that in his order dated 02.12.1993 he had not only declared possession but had effectively declared the title of the second party over the disputed land. According to them, a dispute involving both title and possession cannot be decided by an Executive Magistrate in a Section 145 proceeding.
They pointed out that the revisional court, in its earlier order dated 04.08.2009 (Annexure-3), had already held that the Executive Magistrate’s order was wholly without jurisdiction. Further, only two of the three second parties had challenged that revisional order before the High Court in Criminal Revision No. 459 of 2010, leaving out the third. The petitioners argued that because the third necessary party was left out, the revision itself was not maintainable and that, at least as against Opposite Party No. 4, the order dated 04.08.2009 had attained finality.
They also complained that the criminal revision was restored on 25.10.2013 without notice to them, and that, at the time of fresh hearing after remand, the lower court records, including the original exhibits, had been largely destroyed by termites. A letter (Annexure-7) was placed to show that File-A, File-B, and many documents of Case No. 804 (M.P.)/1993 were in torn condition and eaten by termites, meaning the revisional court decided without full access to evidence.
The petitioners further argued that the dispute was really about title and that there were residential structures and commercial shops on the disputed land. Relying on the judgments in Dilip Poddar vs. State of Bihar & Ors. (2001 (3) PLJR 471) and Netlal Rai vs. State of Bihar (2017 (4) PLJR 606), they claimed that proceedings under Section 145 Cr.P.C. regarding a residential house are misconceived and beyond the power of the Executive Magistrate. They stressed that, as per those decisions, such matters should be left to a competent civil court.
On the other hand, counsel for Opposite Party Nos. 2 to 4 argued that Section 145(2) Cr.P.C. specifically clarifies that “land” includes buildings, markets, fisheries, crops or other produce of land. Therefore, the presence of some huts or shops on a part of the land does not take the matter outside the Magistrate’s jurisdiction.
They highlighted that the area of disputed land is 23 decimals and the alleged buildings occupied only a small portion. They also submitted that the proceeding was initiated in 1987 and the original order was passed in 1993. Since proceedings under Section 145 are preventive and emergency in nature, meant to avoid breach of peace, they argued that, after more than 30 years, all litigation about that preventive proceeding should be treated as closed. For this proposition, they relied on observations of a Division Bench in Ram Chandra Rai & Ors. vs. State of Bihar & Ors. (1991 (1) PLJR 36).
The High Court carefully examined the impugned order dated 01.02.2016, the original order of the Executive Magistrate dated 02.12.1993, and other materials available. It noted that the preventive proceeding was initially under Section 144 Cr.P.C. and later converted to Section 145 Cr.P.C. Both sides had filed written statements and examined witnesses before the Executive Magistrate.
The Court acknowledged that the Executive Magistrate had not given exhibit numbers to the documents produced by the first party in his order, and that this omission was the basis on which Criminal Revision No. 459 of 2010 had earlier been remanded. However, the High Court clarified that proceedings under Section 145 Cr.P.C. are not equivalent to a regular criminal “trial”. Therefore, failure to mention exhibit numbers, by itself, does not vitiate the proceeding if the Magistrate has otherwise discussed and relied upon the evidence.
In the order dated 02.12.1993, the Executive Magistrate had discussed oral evidence of both parties in detail and referred to documents adduced by the first party. Although the lower court record was later found in torn and termite-eaten condition, the Magistrate’s own order contained an elaborate discussion of all evidence. The High Court held that this was sufficient to consider whether the initiation of the Section 145 proceeding was justified and whether the Magistrate’s conclusion on possession was proper.
The Court then turned to the core legal limits of Section 145 Cr.P.C. It reaffirmed that the Executive Magistrate’s role in such a proceeding is confined to enquiring into “actual preliminary possession” over the disputed land or water at the relevant time. The Magistrate is not to decide title or even rightful or legal possession. The Court noted that at the time of initiation, there admittedly was a dispute between the parties creating apprehension of breach of peace, which is a key condition for invoking Section 145.
On the evidence side, it was recorded that the first party (petitioners) examined six witnesses. Two of them were not residents of Harnaut village where the land is situated, three were members of the first party itself, and the sixth was not treated as an independent person by the Magistrate. Because of this, the Executive Magistrate did not consider their evidence sufficient to establish the first party’s possession at the relevant time.
In contrast, the second party (now opposite parties) also examined six witnesses. Some of them were independent persons who supported the claim that the second party was in possession of the disputed land when the proceeding was initiated. The Magistrate found their testimony sufficient to prove the second party’s actual possession at that time.
The High Court observed that, from the witnesses’ statements, it appeared that some structures existed on the disputed land at the time of the Section 145 proceeding, but there was no material to show that buildings covered the entire 23 decimals. It emphasized that under Section 145(2) Cr.P.C., “land” expressly includes buildings and markets. Therefore, the mere existence of some houses or shops on a part of the land did not exclude the Magistrate’s power.
The Court also examined the complaint that the Magistrate had gone into questions of title. It noted that in the order dated 30.11.1993 (immediately preceding the final order), the Magistrate had indeed considered title aspects to some extent. However, in the operative portion of the final order dated 02.12.1993, he confined himself to the question of possession and gave his conclusion only on who was in possession. Thus, whatever passing reference to title existed did not change the basic character of the order as one confined to possession under Section 145 Cr.P.C.
On these findings, the High Court concluded that both legal conditions for a valid Section 145 proceeding were satisfied in this case: there was a dispute relating to land, and there was likelihood of breach of peace. The Executive Magistrate had properly assessed the evidence and correctly declared the second party to be in possession. The revisional court, in its order dated 01.02.2016, had rightly affirmed that conclusion after considering the relevant materials.
Accordingly, the Patna High Court held that there was no illegality or infirmity in the revisional court’s order. It dismissed the Criminal Miscellaneous petition under Section 482 Cr.P.C., thereby maintaining the declaration of possession in favour of the second party and putting an end to the challenge raised by the petitioners.
Why This Judgment Matters
This judgment is important for people involved in land disputes that are taken to the Executive Magistrate under Section 145 Cr.P.C. It clarifies that such proceedings are meant only to decide who is in actual possession at a particular time when there is danger of breach of peace, not to settle ownership or title.
The Patna High Court also confirms that the presence of houses or shops on a piece of land does not automatically remove the case from the Magistrate’s jurisdiction. As long as there is a dispute over land likely to cause breach of peace, the Magistrate can act, even if some part of the land has structures on it.
For lay persons, this decision shows that if you have a deep dispute about ownership, that must be taken to a civil court. But if your immediate problem is that a quarrel over land may lead to violence, Section 145 Cr.P.C. allows an Executive Magistrate to quickly decide who should be treated as being in possession to prevent breach of peace.
It also shows that courts will not easily interfere with old preventive orders, especially where evidence has been discussed in detail and many years have passed. Challenges under Section 482 Cr.P.C. will fail when the lower courts have acted within their powers and followed the law.
Legal Issues and Answers
- Issue: Could the Executive Magistrate validly exercise jurisdiction under Section 145 Cr.P.C. over land where some houses and shops existed, and decide who was in possession?
Answer: Yes. The Patna High Court held that “land” under Section 145(2) includes buildings and markets. The Magistrate was competent to decide actual possession, and his order, confined to possession, was within jurisdiction. - Issue: Did omission to mention exhibit numbers of documents and later damage to the record by termites invalidate the Section 145 proceedings and the revisional order affirming them?
Answer: No. Since Section 145 proceedings are not equivalent to a trial and the Magistrate’s order contained a detailed discussion of oral and documentary evidence, the omission to mention exhibit numbers and later damage to records did not vitiate the proceedings. - Issue: Was there any ground under Section 482 Cr.P.C. for the High Court to quash the revisional court’s order affirming the Executive Magistrate’s decision?
Answer: No. The High Court found no illegality or perversity in the revisional court’s order dated 01.02.2016 and therefore dismissed the petition.
Cases Cited by the Court
- Dilip Poddar vs. State of Bihar & Ors., 2001 (3) PLJR 471 – Relied upon by the petitioners to argue that proceedings under Section 145 Cr.P.C. over a residential house are misconceived, but distinguished on facts by implication in light of Section 145(2) Cr.P.C.
- Netlal Rai vs. State of Bihar, 2017 (4) PLJR 606 – Cited by the petitioners to support the view that disputes over houses should be left to civil courts.
- Ram Chandra Rai & Ors. vs. State of Bihar & Ors., 1991 (1) PLJR 36 – Referred to by Opposite Parties to stress that Section 145 proceedings are of an emergency nature and become stale over time.
Case Details
Case Number: Criminal Miscellaneous No. 19349 of 2016; arising out of P.S. Case No. – Year-1111, Thana – (not specified), District – (not specified); connected with Case No. 804 (M.P.)/1993 and Criminal Revision No. 519 of 1993.
Case Title: Chhote Lal Yadav @ Chhote Lal & Ors. vs. The State of Bihar & Ors.
Coram: Hon’ble Mr. Justice Shailendra Singh
Citation: 2025 (2) PLJR 732
Advocates:
For the Petitioners (First Party): Mr. Sidhendra Narayan Singh, Advocate; Mr. Kumar Lalit, Advocate
For Opposite Party Nos. 2 to 4 (Second Party): Mr. Prem Chand Yadav, Advocate
For the State of Bihar: Mr. Binod Kumar No. 3, APP
Nature of the Case: Petition under Section 482 Cr.P.C. challenging revisional order affirming an Executive Magistrate’s order under Section 145 Cr.P.C. in a preventive land possession dispute.
Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/NiMxOTM0OSMyMDE2IzEjTg==-XFNVb5xnII0=
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