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Dispute as immovable property section 145 of CrPC

Conflicts over immovable property, such as land, water, crops, and other products from the land, as well as the right to utilise such properties, sometimes result in violence or killing, which pushes people to commit crimes. Land conflicts must be resolved by the Civil Court since they are of a civil nature, i.e., between two parties over a civil problem such as ownership of the land, the title to the land, etc.

What happens when a party uses force to obtain land or otherwise breaches the peace. In these situations, the law provides for an alternative criminal proceeding under Section 145 of the Criminal Procedure Code (CrPC) in order to stop a breach of peace and fairly and justly protect the party's interests.

Section 145 is intended only to provide a speedy remedy for the prevention of breach of peace arising out of disputes regarding immoveable property by maintaining one or other of the parties in possession. The provisions of the law dealing with prevention of offences relating to disputes as to immovable property are contained in Chapter 12 of the Code of Criminal Procedure, 1898 comprising sections 145 to 148. How will a Magistrate deal with a situation when he finds that a dispute likely to cause a breach of the peace exists concerning certain land between two parties.

Inclusion Of Section 145 In Crpc

Where a violation of the peace concerning land, waters, or their borders may occur and that information is provided by police or other sources to a circuit judge or a government-sanctioned enforcement judge. In respect of that matter specifically within his local jurisdiction, he shall state the reasons for which he is very satisfied and shall give the parties involved in such disputes, either directly or by petition, a time limit to be determined by the court. You must make a written statement requesting that you appear at A magistrate appears before his court.

It is therefore evident that this section has been incorporated into the law here in order to prevent disputes between the parties and to maintain peace. It also serves as a quick remedy for violations of property and peace resulting from good faith disputes over real estate.

Breach Of Peace

Section 145 of the Code of Criminal Procedure contains provisions related to a breach of peace on account of a dispute over land or water. If there is a dispute between two parties/groups who own a piece of land, water, or a boundary, this will result in a breach of peace and the Executive Magistrate has the power to take action in this regard.

The following conditions must be met in order for a magistrate to have jurisdiction under Section 145:

Dispute Criteria:

  • That there is a dispute.
  • That it might result in a breach of peace.
  • That the disputed property includes buildings, markets, fisheries, crops, or other agricultural products, as well as the land's boundaries, rentals, or profits.
  • That the alleged possession occurred within two months of the Magistrate's first order.
  • That it falls within the Magistrate's jurisdiction.

Example:

Let's consider a scenario where there is a dispute over a piece of land. The criteria for the dispute to be addressed by the Magistrate are as follows:
A' approaches 'B' with other men carrying deadly weapons and tells him that he will return on Monday and forcefully capture the land, firing a few bullets into the air.
Being a short-tempered individual himself, "B" threatens "A" not to attempt to capture the land on Monday and fires a few rounds into the air as well.

In such a circumstance, the parties are extremely likely to engage in a deadly fight. Therefore, in such a circumstance, if the Executive Magistrate is informed by the police report or any other material that a breach of peace is likely to occur, he might order the parties to appear in court and present their written arguments to him.

Procedure Where Dispute Concerning Land, Etc Is Likely To Cause Breach Of Peace

First-class magistrates take action if, after examining police reports or other information, they believe there is a dispute over real estate, including buildings, markets, fisheries, crops or other land products, and rents or profits. can do. from such property within the jurisdiction that may lead to a violation of public order; If a judge decides to act in a dispute, he or she must issue a written order indicate why the parties are required to appear in court within the specified time and present in writing their respective claims of actual possession of the subject matter in dispute. No mention is made of applications under Section 145(1).

The "police report" or "other information" must be sufficient for the magistrate. This "information" can be an interested party, a request from a third party, or even personal data from a magistrate. He may have received the information orally or in writing. Alternatively, he may have witnessed the actions of the parties indicating that he should be concerned about possible violations of public order.

Apparently, no formal application is required to begin the process. It is not often necessary for a political party to submit a case to a magistrate. If the magistrate himself suspects a breach of security, conducts an investigation, and finally becomes convinced that a breach of security should be a concern, and issues a written order showing the grounds for his satisfaction, the date of his order shall be It can be traced back to the first information discovered by him. Because starting points for applications and police reports are not always available.

For the purposes of Section 145 of the Code of Criminal Procedure, "land or water" means real property, including houses, markets, fisheries, crops and other agricultural products, and rents and profits derived from such property. This order will be served as a subpoena and a copy will be made public by posting in a visible location on or near the object of dispute.

Inquiry As To Possession

The Magistrate will then investigate possession in the following steps. Regardless of the case's merits, he must read the submitted statements, hear the parties, receive any evidence they may present, consider the impact of that evidence, obtain any additional evidence he deems necessary, and, if possible, determine which of the parties was in possession of the subject at the time the order was made.

However, if it seems to the Magistrate that any party has been unlawfully and violently removed from possession during the two months prior to the date of such order, he may treat the person thus removed as if he had been in possession at such date. The Magistrate may attach the object of the dispute in an emergency while he makes a ruling.

The Statute Of Section 145 Of The Crpc

Section 145 of the CrPC was enacted to prevent the other party from taking advantage of the other party by preventing public confusion and forcing the other party to prove ownership in civil court. If there is a serious risk of breaking the peace and the other party does not own the property at the time of the provisional order but has legitimate legal heirs, section 145 StPO may apply.

Pre-Orders And Final Orders

A provisional arrangement sets the right wing mechanism in motion. The final order specifies which party owns the property, states that it will remain there until evicted by civil court order, and prevents interference with that property. The same magistrate issues both provisional and final orders. Interim and final orders are issued in the exercise of a magistrate's powers under section 145 of the CrPC. Final orders are made according to section 145(4) StPO and provisional orders are made.

Difference Between Exercising Powers Under 145 Of The Crpc

The exercise of powers by section 145 is mandatory. Section 145 deals with specific situations alleged to involve disputes that may lead to violations of public security, including those relating to immovable property, whereas Section 107 deals with the prevention of violations of public security. In this opinion, instead of Section 107 CrPC, Section 145 CrPC, which has a special character, applies to disputes over ownership of immovable property.

Case Laws:
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.

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.

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.
 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 previsional 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.

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.

Conclusion
The criminal justice system exists to bring justice to innocents and punish perpetrators. In many cases where the issue is civil in nature, filing a misunderstood criminal case is used as a bargaining chip to coerce and intimidate the defendant into settlement. Various judgments have been made by the High and Supreme Courts to protect people in such situations. In 145 CrPc cases, if the matter is pending in a civil court, protection may be granted by the same court, and there is clear precedent that the judge does not take up the matter and refers the matter to the relevant court.

However, in some emergencies, and in emergencies likely to cause public order, in which a civil court cannot be summoned, the judge will hear the facts and circumstances of the case in accordance with Article 145 CrPC. The magistrate is not required to rule on property ownership issues, but restores the party's ownership as he was entitled, according to the documents in his possession. However, if no civil action is pending and has not yet been registered, the magistrate is free to proceed under section 145 CrPC.

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