The Executive Magistrate at any time after making the order under sub-section
(1) of Section 145 in the Code Of Criminal Procedure, 1973 considers the case to
be one of emergency, or if he decides that none of the parties was then in such
possession as is referred to in Section, or if he is unable to satisfy himself
as to which of them was then in such possession of the subject of dispute, he
may attach the subject of dispute until a competent Court of Law has determined
the rights of the parties thereto with regard to the person entitled to the
possession thereof, attach subject of dispute under Section 146 of the Code Of
Criminal Procedure, 1973.
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. [Debi
Prasad Vs Sheodat Rai, (1908) ILR 30 All 41; Krishna Kamini Vs Abdul Jubbar,
(1903) 30 Cal. 155]. The proceedings under Section 145 are quasi-judicial and
quasi-administrative in nature and their object is to prevent a breach of peace
and maintain tranquility.
The Magistrate must be satisfied of the two conditions:
- A dispute regarding immoveable property exists; and
- such a dispute is likely to cause a breach of peace.
Once he is satisfied of these conditions, Section 145 requires him to pass a
preliminary order under sub-section (1) and thereafter under sub-section (6). It
is, however, not necessary that at the time of passing the final order, the
apprehension of breach of peace should continue to exist. [R. H. Bhutani Vs
Miss Mani J. Desai & Ors, AIR 1968 SC 1444; Rajpati Vs Bachan & Anr, AIR 1981
145. Procedure where dispute concerning land or water is likely to cause breach
- 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.
- 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.
- 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,
- The Magistrate shall then, without, reference to the merits or 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).
Provided that if it appears to the Magistrate that any party has been forcibly
and wrongly dispossess 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).
- 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.
- (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 therefrom 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).
- 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.
- 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-proceeds thereof, as he thinks fit.
- 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.
- Nothing in this section shall be deemed to be in derogation of the
powers of the Magistrate to proceed under section 107.
Object of the Section
Chapter X of the Code of Criminal Procedure, 1973 deals with the maintenance of
public order and tranquillity. Thus, a duty has been cast on the shoulders of
the Magistrate to take preventive measures as and when he/she apprehends that
there is an apprehension of breach of peace in the areas situated within his
The object of Section 145 of the Code of Criminal Procedure, 1973
is to prevent breach of peace and for that end to provide a speedy remedy by
bringing the parties before the Court and ascertaining who of them was in actual
possession and to maintain a status quo until their rights are determined by a
competent Court of Law. The proceedings are only preventive and are quasi
judicial and quasi-administrative in nature, their object being to prevent
breach of peace and maintain tranquillity.
The orders which a Magistrate passes under Section 145 of Code of Criminal
Procedure, 1973 are 'police orders'. The order of Magistrate under this section
is merely a provisional police order based upon the fact of previous possession.
It is made only for the purpose of preventing a breach of the peace and being
made irrespective of rights of the parties, it cannot enable the person in whose
favour it is made to resist a suit on title. [Bhinka Vs Charan Singh, AIR
1959 SC 960; Maqsood
v/s Husna, AIR 1971 Patna 31; Jhunamal v/s State of Madhya Pradesh, AIR 1988 SC 1973].
In the proceedings under Section 145 of Code of Criminal Procedure, 1973 the
Executive Magistrate is called upon to decide the fact of actual possession and
not to decide which party has a right to possess. [Upendra Mohanta v/s Saradim
Mohonta, 2001 Cri. L. J 763 (Orissa)]. Where the dispute is not on the right
to possession but on the question of possession, the Magistrate is empowered to
take cognizance under Section 145 of Code of Criminal Procedure, 1973. [Prakash
Chand Sachdeva v/s State, (1994) 1 SCC 471]
Under the Code of Criminal Procedure, 1973, there is a complete separation of
judicial function from the executive or administrative functions. The judicial
function has been allotted to the Judicial Magistrates and the executive
function has been allotted to the Executive Magistrates. There is a clear cut
division between the powers of the two. Magistrates under the Code of Criminal
The power of initiating a proceeding under Section 145 of the
Code has been entrusted to the Executive Magistrates, as such the nature of the
proceeding is an administrative one though the parties have been given an
opportunity of the hearing to comply with the requirement of audi alteram partem.
The proceeding is not a criminal trial in the strict sense as the proceeding
does not relate to an offence nor it is a punitive in nature nor the parties are
arrayed as accused.
The material question for consideration in such proceedings is always who was in
possession, exclusive or joint. Naturally, proceedings under Section 145 can be
taken only if there is an apprehension of breach of peace. The State cannot
permit that the riots should be committed and heads be broken merely because two
contending parties hold different opinions about the claims to the possession
and ownership of some immovable property.
The maintenance of public peace is the
object in the mind of the legislature and that being the supreme object in view,
the convenience and even rights of the individual must for the time being be
scarified for its attainment. It may be that the owners of the property are
temporarily deprived of what is lawfully their property and may also be
subjected to other inconveniences but all these considerations are subservient
to the imperative necessity of preserving the peace.
The proceedings under
Section 145 have to be taken cautiously and the Magistrate must follow the
provisions scrupulously. The proceedings should not be initiated with some
ulterior motives i. e where the purpose of the party is to get possession
without the expenses, delay and trouble of a civil suit or the settlement of
what are really civil dispute.
In Mathuralal v/s Bhanwar Lal, AIR 1980 SC 242, the Supreme Court while
considering Section 145 Cr. P. C observed as under;
Quite obviously, Sections 145 and 146 of the Criminal Procedure Code together
constitute a scheme for the resolution of a situation where there is a
likelihood of a breach of the peace because of a dispute concerning any land or
water or their boundaries.
If Section 146 is torn out of its setting and read independently of Section 145,
it is capable of being construed to mean that once an attachment is effected in
any of the three situations mentioned therein, the dispute can only be resolved
by a competent Court and not by the Magistrate effecting the attachment. But
Section 146 cannot be so separated from Section 145. It can only be read in the
context of Section 145. Contextual construction must surely prevail over
isolationist construction. Otherwise, it may mislead. That is one of the first
principles of construction.
The proceeding under Section 145 of the Code of Criminal Procedure, 1973 is an
urgent proceeding for maintenance of public safety and tranquillity. Its object
is to prevent breach of the peace and to provide a lawful remedy for determining
the claim of the parties with regard to actual possession and to maintain a
status quo till the matter is finally decided by the competent Court of Law.
the Magistrate is satisfied with the two conditions, namely, that there is
apprehension of breach of the peace with regard to immovable property and the
same is likely to cause apprehension of breach of peace, then he has to initiate
a proceeding under Section 145 of the Code. After initiation of the proceeding
the Magistrate has three options in law, he can cancel the order if any party to
the proceeding at any time after the initiation of the proceeding shows that no
apprehension of breach of peace concerning the disputed land exists or has
existed, he can hold at inquiry as provided under Section 145 (4) and pass a
final order declaring the possession of one of the parties or he can attach the
land under Section 146 of the Code in the circumstances mentioned therein till
the competent court determines the right of the parties with regard to the
person entitled to possession thereon.
Once the proceeding under Section 145 of the Code has been initiated on the
fulfilment of two conditions as mentioned above, then there is no requirement in
law that the apprehension of breach of peace should continue at every stage of
the under Section 145 nor there is a requirement that finding of existence of
breach of peace is necessary at the time of passing the final order. However, if
the materials on the record show that breach of peace has ceased to exist at any
time during the pendency of the proceeding then the Magistrate will cancel the
preliminary order of drop the proceeding as provided under Section 145 (5) of
The Apex Court in the case of Rajpati Vs Bachan & Ors., AIR 1981 SC
18, held , as follows:
It is, therefore, manifest that a finding of existence of breach of the peace
is not necessary at the time when a final order is passed not is there any
provision in the Code of Criminal Procedure requiring such a finding in the
Once a preliminary order drawn up by the Magistrate sets out the reasons for
holding that a breach of the peace exists, it is not necessary that the breach
of peace should continue at every stage of the proceeding unless there is clear
evidence to show that the dispute has ceased to exist so as to bring the case
within the ambit of Sub-section (5) of Section 145 of the Code of Criminal
Procedure. Unless such a contingency arises the proceedings have to be carried
to their logical and culminating in the final order under Sub-section (6) of
Essential Requisites for the applicability of Section 145
For exercising powers under Section 145 of Code of Criminal Procedure, 1973 two
essential conditions are to be necessarily satisfied:
- Existence of dispute concerning any land or water or boundaries thereof;
- Such dispute is likely to cause breach of peace.
Where the ingredients of Section 145 are not complied with, the order is not
according to law merely because there is dispute or there is breach of peace in
respect of property are not the only circumstance which shall have to be taken
into consideration to consider whether the orders under challenge are valid or
not but other factors namely:
- sufficient material made available and
- the ground which compelled to take action which are mandatory
requirements are to be considered.
After all to initiate proceedings under Section 145 (1) and 146 (1)
of Code of Criminal Procedure, 1973 is a serious matter.
Proceedings under Section 145 of the Code of Criminal Procedure, 1973 are not
meant for deciding the title or the right to possession of a party. In
proceedings under Section 145 the Magistrate does not purport to decide the
question of title and that question can be decided in due course of law.
The foundation of the jurisdiction of the Magistrate under Section 145 of the
Code of Criminal Procedure is on the apprehension of the breach of peace, and
with that purpose he makes an order irrespective of the rights of the parties,
and the order that the Magistrate makes would be subject to the order that would
be passed by a decree of a Civil Court. [Bhinka Vs Charan Singh, AIR
1959 SC 960].
It is true that the provisions of Section 145 of the Code of Criminal Procedure,
1973 are purported to meet an emergent situation where there is an apprehension
of the breach of the peace and that section, therefore, provides an expeditious
remedy and a procedure suitable for that purpose. In that sense the proceedings
are no doubt of a summary nature. It is also true that proceedings under Section
145 of the Code of Criminal Procedure, 1973 should not be looked at from a
technical aspect and it has to be borne in mind that parties have an alternative
remedy by way of a Suit.
Law relating to Section 145 & 146 of Code of Criminal Procedure, 1973 has been
elaborately discussed by Hon'ble Supreme Court in Shanti Kumar Panda Vs.
Shakuntala Devi (2004) 1 SCC 438 holding as under:
10. Possession is nine points in law. One purpose of the enforcement of the law
is to maintain peace and order in society. The disputes relating to property
should be settled in a civilized manner by having recourse to law and not by
taking the law in own hands by members of society. A dispute relating to any
land etc. as defined in sub-section (2) of Section 145 having arisen, causing a
likelihood of a breach of the peace, Section 145 of the Code authorizes the
Executive Magistrate to take cognizance of the dispute and settle the same by
holding an enquiry into possession as distinguished from right to possession or
The proceedings under Sections 145/146 of the Code have been held to be
quasi-civil, quasi-criminal in nature or an executive or police action. The
purpose of the provisions is to provide a speedy and summary remedy so as to
prevent a breach of the peace by submitting the dispute to the Executive
Magistrate for resolution as between the parties disputing the question of
possession over the property.
The Magistrate having taken cognizance of the dispute would confine himself to
ascertaining which of the disputing parties was in possession by reference to
the date of the preliminary order or within two months next before the said
date, as referred to in the proviso to sub-section (4) of Section 145 and
maintain the status quo as to possession until the entitlement to possession was
determined by a court, having competence to enter into adjudication of civil
rights, which an Executive Magistrate cannot.
The Executive Magistrate would not take cognizance of the dispute if it is
referable only to ownership or right to possession and is not over possession
simpliciter; so also the Executive Magistrate would refuse to interfere if there
is no likelihood of breach of the peace or if the likelihood of breach of peace
though existed at a previous point of time, had ceased to exist by the time he
was called upon to pronounce the final order so far as he was concerned.
Written By: Dinesh Singh Chauhan, Advocate, High Court of Judicature,
Email: [email protected], [email protected]yahoo.com