# Jai Veer Singh & Ors v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Matter Under Article 227 No. 6222 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-veer-singh-ors-v-state-of-u-p-ors-46137
- **Pages:** 12

## Headnote

A. Civil Law - Constitution of India:
Article 227 - Scope of Magistrate's
jurisdiction
-
Code
of
Criminal
Procedure, 1973; Section 133, 145,
146(1) - The Magistrate's jurisdiction,
from the bare and clear words of the
Statute is about preventing a breach of
peace arising from a dispute relating to
possession of an immovable property.
The jurisdiction is one that relates to
preservation of breach of peace, and not an
adjudication about possession of parties,
much less their title. The scope is to
determine
which
party
was
in
actual
possession of the property in dispute on the
date that he makes the preliminary order, and
also to determine if any party has been
dispossessed two months anterior in point of
time to the date when preliminary order is
made. He can also take into account
dispossession of a party at any time after he
makes a preliminary order. The Magistrate
can
grant
an
injunction
within
limited
parameters and not otherwise. (Para 17, 18)

It must also be noted that the Magistrate's
jurisdiction to make an order under Section
145 of any kind, must involve a continuing
breach of peace. If at any time before it
passes an order relating to possession for one
or the other party, the apprehension of
breach of peace disappears, he must lay his
hands off. He must not feel tempted to
adjudicate
because
he
has
issued
a
preliminary order and the parties have put in
their written statements and led evidence.
This is the clear purport of sub-Section (5) of
Section 145 of the Code. (Para 19)

Court observed that the learned Judge
glossed over the fact that the information
before the Magistrate, on the basis of which
he passed the preliminary order, only spoke
about a threat to the respondents' possession
from the petitioners. There was no material
about an apprehension of breach of peace.
There was, thus, no jurisdiction at all to
initiate
these
proceedings
where
the
impugned orders have been passed. (Para 23)
Writ Petition allowed. (E-3)

Precedent followed:

## Text

_Characters 0–39,787 of 41,558. This is a partial read: ask again with offset=39787 for what follows._

926 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Since, she is not inclined to go
back to her parents, for the present, this
Court is left with no alternative but to
direct the State to place her in a suitable
State facility other than a Nari Niketan,
may be a Safe Home/Shelter Home.

18. The District Magistrate, Hapur
and the Superintendent of Police, Hapur
are ordered to ensure that the prosecutrix
is immediately housed in a suitable Safe
Home/Shelter Home, or other State
facility where she would be safe and
taken care of.

19. The learned District Judge,
Hapur is also directed to ensure that a
Lady Judicial Officer, posted in his
Judgeship, will visit the prosecutrix once
a month and inquire about her welfare. In
case there is anything objectionable, she
will immediately report the matter to the
District Judge, who will take appropriate
steps to ensure the prosecutrix's welfare
during her stay in the State facility/Safe
Home/ Shelter Home, wherever she is
housed.

20. Shivani would be permitted to
live in State facility/Safe Home/Shelter
Home till 04.11.2022, and thereafter, she
may go wherever she wants and stay with
whomsoever she likes, including Pintoo,
whom she claims to be her husband.

21. In the result, this petition
succeeds and is allowed. The impugned
order dated 24.11.2020, passed by the
learned Judicial Magistrate-I, Hapur in
Case Crime No. 516 of 2020 under
Section 363 IPC, P.S. Pilakhuwa, District
Hapur
is
hereby
set
aside.
The
prosecutrix
shall
be
dealt
with
in
accordance with the directions made
hereinabove.

22. Let Shivani, who is present in
person, be forthwith taken into the care of
the Court Officer and conveyed through the
Registrar
General
to
the
Senior
Superintendent of Police, Prayagraj. The
Senior Superintendent of Police, Prayagraj
shall cause the prosecutrix to be conveyed
in safety to the Superintendent of Police,
Hapur, who, along with the District
Magistrate, Hapur will carry out the
directions carried in this order forthwith.

23. The Court Officer shall convey
Shivani to the Registrar General, who shall
make immediate arrangement to take her
into his immediate care and ensure
compliance of this order.

24. Let this order be communicated to
the learned District Judge, Hapur, the
District Magistrate, Hapur, the Senior
Superintendent of Police, Prayagraj and the
Superintendent of Police, Hapur by the
Joint Registrar (Compliance) within 24
hours.
----------
(2021)01ILR A926
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 6222 of 2018
(Criminal)

Jai Veer Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mukesh Kumar, Sri Mukesh Kumar
Singh

Counsel for the Respondents:
1 All. Jai Veer Singh & Ors. Vs. State of U.P. & Ors.
927
A.G.A., Sri Anirudh Kumar Upadhyay, Sri
Raj Bahadur Verma, Sri Aniruddh Singh

A. Civil Law - Constitution of India:
Article 227 - Scope of Magistrate's
jurisdiction
-
Code
of
Criminal
Procedure, 1973; Section 133, 145,
146(1) - The Magistrate's jurisdiction,
from the bare and clear words of the
Statute is about preventing a breach of
peace arising from a dispute relating to
possession of an immovable property.
The jurisdiction is one that relates to
preservation of breach of peace, and not an
adjudication about possession of parties,
much less their title. The scope is to
determine
which
party
was
in
actual
possession of the property in dispute on the
date that he makes the preliminary order, and
also to determine if any party has been
dispossessed two months anterior in point of
time to the date when preliminary order is
made. He can also take into account
dispossession of a party at any time after he
makes a preliminary order. The Magistrate
can
grant
an
injunction
within
limited
parameters and not otherwise. (Para 17, 18)

It must also be noted that the Magistrate's
jurisdiction to make an order under Section
145 of any kind, must involve a continuing
breach of peace. If at any time before it
passes an order relating to possession for one
or the other party, the apprehension of
breach of peace disappears, he must lay his
hands off. He must not feel tempted to
adjudicate
because
he
has
issued
a
preliminary order and the parties have put in
their written statements and led evidence.
This is the clear purport of sub-Section (5) of
Section 145 of the Code. (Para 19)

Court observed that the learned Judge
glossed over the fact that the information
before the Magistrate, on the basis of which
he passed the preliminary order, only spoke
about a threat to the respondents' possession
from the petitioners. There was no material
about an apprehension of breach of peace.
There was, thus, no jurisdiction at all to
initiate
these
proceedings
where
the
impugned orders have been passed. (Para 23)
Writ Petition allowed. (E-3)

Precedent followed:

1. Indira & ors. Vs Dr. Vasantha & ors., 1991
CrLJ 1798 (Mad.) (Para 19)

2. Yaqub Ali Vs St. of Raj. & ors., 1995 CrLJ
1376 (Raj.) (Para 19)

3. Chatraram & ors. Vs St. of Raj. & ors., 1996
CrLJ 4495 (Raj.) (Para 19)

4. Ashok Kumar Vs St. of U.K. & ors., (2013) 3
SCC 366 (Para 23)

Present petition challenges order dated
13.01.2017,
passed
by
Executive
Magistrate and affirmed by Additional
Sessions Judge, Farrukhabad.

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioners here complain that
the Executive Magistrate, in the purported
exercise of his power under Section 145 (1)
of the Code of Criminal Procedure, 19731
has usurped the civil court's jurisdiction
and passed orders that only the civil court
could have done.

2. Truly speaking, the controversy
involved in this petition under Article 227
of the Constitution is about the Executive
Magistrate's jurisdiction to pass the order
impugned dated 13.01.2017, under Section
145 of the Code, that has met with approval
of the Additional Sessions Judge in a
revision carried by the petitioners from the
Magistrate's order.

3. The dispute is about 16 decimals of
land, a part of Khasra No. 359, situated in
Mauza Abhaipur, Pargana Shamshadbad
East, Tehsil - Sadar, District - Farrukhabad.
The total area of Khasra No. 359 is 1.43
acres. Smt. Radha, wife of Luxmi Narain
and Smt. Tara Devi, wife of Vidwan Singh,
928 INDIAN LAW REPORTS ALLAHABAD SERIES
both natives of Village Abhaipur, Police
Station - Mohammadabad, District -
Farrukhabad claim to be the title holders in
possession of the 16 decimals of Khasra
No. 359 last mentioned. The land aforesaid
is hereinafter referred to as "the land in
dispute". Smt. Radha and Smt. Tara Devi
are respondent nos. 2 and 3 to this petition.
For the sake of convenience, they shall
hereinafter
be
referred
to
as
"the
respondents".

4. The petitioners are six in number.
Jai Veer Singh, Badan Singh, Jeet Pal, are
sons of Prem Raj, and Anand, Arun,
Sangeet, are sons of Rustam Singh. The
proceedings before the Magistrate were
commenced by the respondents, under
Section 145 (1) of the Code against Jai Veer
Singh, Rustam Singh, Badan Singh and
Jeet Pal Singh, all sons of Prem Raj and
Mahipal Singh and Ajay Singh, both sons
of Saudan Singh. Of all the original parties
to the proceedings before the Magistrate,
Rustam Singh appears to have passed away
and his interest before this Court is
represented by his three sons Anand, Arun
and Sangeet. The other two parties to the
proceedings before the Magistrate, Mahipal
Singh and Ajay Singh, have not come up
against the orders impugned. In these
proceedings, Jai Veer Singh, Anand, Arun,
Sangeet, Badan Singh and Jeet Pal shall be
hereinafter collectively referred to as "the
petitioners". This collective description will
bear reference to the interest of Mahipal
Singh and Ajay Singh, sons of Saudan
Singh, who have not come up against the
impugned orders. The respondents made an
application
to
the
Sub-Divisional
Magistrate,
Sadar,
Farrukhabad
on
24.02.2014, under Section 145 of the Code,
wherein the substance of the respondents'
case is no more than this, that the
petitioners forcibly and illegally want to
dispossess
the
respondents
from
the
property in dispute, and by doing that, they
design to block a public way to the east of
the property. It is also said that in case the
petitioners forcibly and illegally dispossess
the respondents from the land in dispute,
the public way to the east of that land
would be obstructed, which would cause
the respondents irreparable injury. It is also
asserted that in case the petitioners
dispossess the respondents, their purpose of
instituting the proceedings would be
rendered infructuous. It is prayed on behalf
of the respondents that the Sub-Divisional
Magistrate may injunct the petitioners from
forcibly and illegally dispossessing the
respondents
and
take
all
necessary
proceedings for the purpose.

5. It needs mention here that the
petitioners' claim to the property in dispute
as heirs of a certain late Smt. Phula, widow
of Lalta Singh, through their deceased
father, the late Puttu, claiming her 1/9th
share located to the west of the village
road. The said share, according to the
petitioners, works out to an area of 16
decimals.

6. It appears that on the Magistrate
ordering the Station House Officer,
Kotwali
Mohammadabad,
District
-
Farrukhabad to hold an inquiry into the
allegations and submit a report, the police
submitted a report dated 14.03.2014 to
the Magistrate. A perusal of the police
report shows that the respondents are
natives of Village Abhaipur. Their father,
Puttu, passed away, in consequence
whereof, their names have been entered
in the khatauni relating to the land in
dispute.
The
report
records
the
respondents'
allegation
that
the
petitioners
want
to
forcibly
take
possession of the land in dispute, and that
1 All. Jai Veer Singh & Ors. Vs. State of U.P. & Ors.
929
they threaten them. The report also
records the respondents' apprehension
that the petitioners may take forcible
possession of the land in dispute at any
time. A site-plan of the property in
dispute was also attached to the police
report. On the basis of the police report,
the Magistrate passed a preliminary order
under Section 145 (1) of the Code on
27.07.2016, directing the parties to
appear, put in their written statements and
lead
evidence
in
support
of
their
respective cases. Later on, on 11.11.2016,
the Magistrate passed an order under
Section 146 (1) of the Code, directing
attachment of the property in dispute on
the
ground
of
emergency,
pending
determination
of
proceedings
under
Section 145. That order records that
during a tour of the area, the Magistrate
did an inspection of the spot and found
that there was tension prevailing between
the parties concerning the land in dispute,
which gave rise to an apprehension of
breach of peace. He, therefore, ordered
the land in dispute to be attached and
delivered
into
the
custody of
any
respectable person. The police were
directed to carry out attachment and
submit a report. The land in dispute was
attached by the police on 14.12.2016 and
given into the possession of one Natthu
Singh, acting as the supurdgar.

7. After the parties led evidence, the
case under Section 145 came up for
determination before the Magistrate on
13.01.2017. The Magistrate ordered that the
preliminary order dated 17.07.2016 passed
by him is made absolute and the order
dated 11.11.2016 under Section 146 (1)
stands withdrawn. The petitioners were
injuncted
from
interfering
with
the
respondents' possession over the land in
dispute. In case they had taken possession
of the said land, they were ordered to
vacate it within a week.

8. This order of the Magistrate's was
challenged by the petitioners before the
learned Sessions Judge, vide Criminal
Revision No. 186 of 2017. This revision
came up for determination before the
learned Additional Sessions Judge, Court
No.
6/Special
Judge
(E.C.
Act),
Farrukhabad
on
24.05.2018.
He
has
dismissed the revision and affirmed the
Magistrate's order dated 13.01.2017.

9. Aggrieved, this petition under
Article 227 of the Constitution has been
filed.

10. The parties have brought a wealth
of material on record in support of their
respective
cases
about
title
to
and
possession of the property in dispute. This,
they have done, through papers annexed to
the writ petition, a counter affidavit dated
01.10.2018 filed by the respondents, a
rejoinder affidavit dated 23.09.2020 on
behalf of the petitioners, a supplementary
affidavit dated 04.10.2020 filed by the
petitioner, a supplementary short counter
affidavit
dated
09.10.2020
and
a
supplementary rejoinder affidavit in answer
to it by the petitioners dated 13.10.2020.

11. Heard Mr. Mukesh Kumar Singh,
learned counsel for the petitioners, Mr.
Aniruddh Singh, learned counsel appearing
on behalf of the respondents and Mr.
Indrajit
Singh,
learned
Additional
Government Advocate appearing on behalf
of the State of Uttar Pradesh.

12. The petitioners lay claim to the
property in dispute, on the basis of title to a
1/16th share in Khasra No. 359 that they
have purchased from one Tehsildar, son of
930 INDIAN LAW REPORTS ALLAHABAD SERIES
Sultan, by means of a registered sale deed
dated 05.10.1987 and a further accretion to
their rights in the said khasra number by
transfer of the 1/16th share of Smt. Kokila
Devi, wife of the late Puttu, in Khasra No.
359 vide registered sale deed dated
08.07.1988 executed in favour of Smt.
Kokila Devi, wife of the late Prem Raj,
mother of petitioners Jai Veer Singh, Badan
Singh and Jeet Pal. The respondents dispute
the validity of the sale deed executed by
their mother Smt. Kokila Devi, wife of the
late Puttu, dated 08.07.1988. They say that
they have inherited the property upon the
death of their mother, and after her, their
father, the late Puttu as well as the share of
the late Smt. Phula, through their father. It
must be remarked here that according to the
respondents' case, originally urged before
the Magistrate, the property in dispute has
an area of 16 decimals, inherited from Smt.
Phula. But once the petitioners came up
with the case that they had purchased the
property in dispute through sale deeds
dated 05.10.1987 and 08.07.1987 from
Tehsildar, son of Sultan and Smt. Kokila
Devi, wife of the late Puttu respectively, the
respondents have assailed the petitioners'
rights, on the basis of those two sale deeds,
including that executed by their mother. It
must also be remarked that Khasra No. 359
appears to have many co-sharers, amongst
whom, Smt. Kokila, widow of the late
Puttu, Tehsildar, son of Sultan and Smt.
Phula, widow of the late Lalta Singh were
all recorded with varying shares. It is,
therefore, difficult to say with much
precision here whether the property in
dispute is exclusively that which lay in
Smt. Phula's share or includes the share of
Smt. Kokila, claimed to be purchased by
the petitioners through a registered sale
deed. All these issues are properly the
subject matter of two suits pending
between the petitioners on the one hand and
the respondents on the other, before the
Civil Court.

13. It figures on record that O.S. No.
614 of 2016 has been filed by the
petitioners against respondents in the court
of
the
learned
Civil
Judge
(Junior
Division),
Farrukhabad,
claiming
a
permanent injunction, seeking to restrain
the respondents (the defendants to that suit)
from interfering in the petitioners' peaceful
possession over the property in dispute and
from demolishing a wall shown by letters
"Ba, Sa". The respondents, on the other
hand, disowning the sale deed executed by
their mother in favour of the petitioners
relating to the property in dispute, have
instituted O.S. No. 19 of 2017 before the
learned Civil Judge (Junior Divsion), City -
Farrukhabad, seeking a decree for the
cancellation of the registered sale deed
dated
27.07.1988.
Thus,
the
dispute
between the parties about the title of and
possession to the property in dispute is
engaging the attention of the civil court, in
two suits that are virtually cross suits.

14. It is submitted by Mr. Mukesh
Kumar, learned counsel for the petitioners,
that the impugned orders passed by the
courts
below
are
manifestly
illegal,
inasmuch as the Magistrate has no
jurisdiction to grant an order of injunction
of the kind that he has made. It is only the
civil court that could have passed that
order. The learned Magistrate has exceeded
his jurisdiction and passed an ultra vires
order. It is urged by him that those
proceedings are motivated by an ex-Village
Pradhan, who had unsuccessfully got
proceedings initiated under Section 133 of
the Code, relating to the land in dispute that
he claimed to be a public way. Those
proceedings did not yield any relief in
favour of the proxies acting for the ex-
1 All. Jai Veer Singh & Ors. Vs. State of U.P. & Ors.
931
village Pradhan, who had moved the
Magistrate under Section 133 of the Code.
He urges that it is the respondents now who
are doing a second inning at the behest of
the ex-village Pradhan, Natthu Singh, to
deprive the petitioners of the property in
dispute. He emphasizes that all this ought
to be decided in a duly constituted suit by a
Judge determining the action, and not by
abuse of the process of criminal law. An
Executive Magistrate, who is not a Judge,
cannot decide the question of title or
possession or title and possession. He
submits that the issues involved, if at all
these are ought to be determined in the
pending suits between parties, and not in a
surreptitious manner by the Magistrate,
seized of proceedings under Section 145 of
the Code. The orders passed by the
Magistrate are beyond the scope of his
jurisdiction.

15. Mr. Aniruddh Kumar, learned
counsel for the respondents, on the other
hand, submits that the impugned orders do
not call for interference. He submits that
the respondents are women and are facing
unlawful deprivation of their property at
the hands of the petitioners, who were
threatening to forcibly dispossess them. He
submits that in the suit filed by the
petitioners, no temporary injunction has
been granted as yet, though the temporary
injunction application is still pending. On
being confronted with the issue about the
Magistrate
venturing
into
forbidden
territory, deciding questions relating to title
and possession of parties, learned counsel
for respondents submits that justice has to
be administered promptly in such matters
and the tardy process of the civil court
defeats justice. He submits that the courts
below, particularly the revisional court, has
found the respondents to be the recorded
owners in possession of the property in
dispute, in whose favour mutation has been
granted upon the decease of the last
recorded bhumidhar, Smt. Phula, the
respondents' predecessor-in-title. It is urged
that title and possession, being found by the
two courts below in favour of the
respondents, the Magistrate has rightly
injuncted the petitioner from interfering
with the respondents' possession and also
directed their eviction, in case they have
taken possession.

16. This Court has given a thoughtful
consideration to the rival contentions and
perused the record. In order to determine
the
parameters
of
the
Magistrate's
jurisdiction, it would be profitable to refer
to the provisions of Section 145 of the
Code, which are extracted below :

145. 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
932 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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).

(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 subsection (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 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).

(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- proceeds 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.

17. It is of seminal importance to
notice that the Magistrate's jurisdiction,
1 All. Jai Veer Singh & Ors. Vs. State of U.P. & Ors.
933
from the bare and clear words of the Statute
is about preventing a breach of peace
arising
from
a
dispute
relating
to
possession of an immovable property. The
jurisdiction
is
one
that
relates
to
preservation of breach of peace, and not an
adjudication about possession of parties,
much less their title. In fact, the provisions
of Section 145 of the Code finds place in
Chapter X of the Code, which relates to
maintenance
of
a
public
order
and
tranquility. It is only to prevent breach of
peace that the Magistrate has been
summarily entrusted with jurisdiction to
determine as to which party was in
possession of the property that is cause of
the apprehended breach of peace on the
date that he makes the preliminary order
under Section 145 of the Code. The scope
about the inquiry as to which party was in
actual possession of the property in dispute,
has been expanded in temporal terms to a
period of time two months next before the
date of the Magistrate's preliminary order.
It is also designed to take cognizance of
any dispossession of a party made after the
Magistrate passes the preliminary order
under Section 145 (1). Thus, the scope of
the Magistrate's jurisdiction is to determine
which party was in actual possession of the
property in dispute on the date that he
makes the preliminary order, and also to
determine
if
any
party
has
been
dispossessed two months anterior in point
of time to the date when preliminary order
is made. He can also take into account
dispossession of a party at any time after he
makes
a
preliminary
order.
In
the
eventuality where the Magistrate finds a
party to be in actual possession of the
property in dispute on the date of the
preliminary order, he may declare such
party to be entitled to possession thereof,
until a court of civil jurisdiction or other
court of competent jurisdiction orders that
party to be evicted. In a case where the
Magistrate so declares a party to be entitled
to possession, until evicted in due course of
law, he may forbid all disturbance of such
possession until a court of competent
jurisdiction
orders
otherwise.
The
Magistrate,
therefore,
can
grant
an
injunction within these limited parameters
and not otherwise. In a case covered by the
provisions of sub-Section (4) to Section
145 of the Code, where the Magistrate
finds that a party was in possession two
months anterior to the date that he passed
the
preliminary
order,
or
has
been
dispossessed after he made the preliminary
order, he may order restoration of that party
to possession found by him to be forcibly
and wrongfully deprived during the specific
period of time. There are other orders that
could
be
made
dependent
on
the
contingencies that the Magistrate may
encounter while deciding the question of
possession on the date of preliminary order,
but those are not relevant for the purpose of
the present controversy.

18. It would, thus, appear that the sine
qua non of the Magistrate's jurisdiction
under Section 145 is an apprehended
breach of peace relating to a dispute
concerning an immovable property. The
purpose of the jurisdiction is to preserve
peace. The decision about possession that
the Magistrate is to enjoined to take is for
the purpose of preservation of peace; the
Magistrate's decision about possession is
only
incidental
to
the
purpose
of
maintaining peace. It is no jurisdiction to
decide
anything
about
the
party's
possession, much less title. It is also to be
remarked that in the process of maintaining
peace, whatever the Magistrate decides
about actual possession of a party to a
dispute relating to immovable property has
nothing to do with the propriety of
934 INDIAN LAW REPORTS ALLAHABAD SERIES
possession. It is just designed to find out
who was in settled possession, the sudden
unsettlement
whereof
led
to
an
apprehended breach of peace.

19. This being the scope of the
Magistrate's jurisdiction, the invocation of
power under Section 145 by a Magistrate,
is frowned upon pending proceedings
relating to possession or title of the said
property before a civil court or any other
court of competent jurisdiction, say, a
revenue court or other special tribunal, that
has seison of the dispute at given point of
time when an apprehension about breach of
peace arises. In this connection, reference
may be made to the decisions in Indira &
Others v. Dr. Vasantha & Others2,
Yaqub Ali v. State of Rajasthan &
Others3 and Chatraram & Others v.
State of Rajasthan & Others4. Ideally, in
that situation, the court concerned ought to
be approached with an application for
appropriate interim orders. Once orders are
passed by a court of competent jurisdiction
about possession or in any manner, making
a temporary arrangement, the Magistrate
ought not interfere in the matter. There
could, however, be situations where there
are no interim orders, and a serious threat
to peace arises. In those cases, the
Magistrate may act, but very carefully, and
only when he finds that the court of
competent jurisdiction is reluctant to pass
orders, and the apprehension about breach
of peace continues. It must also be noted
that the Magistrate's jurisdiction to make an
order under Section 145 of any kind, must
involve a continuing breach of peace. If at
any time before it passes an order relating
to possession for one or the other party, the
apprehension
of
breach
of
peace
disappears, he must lay his hands off. He
must not feel tempted to adjudicate because
he has issued a preliminary order and the
parties have put in their written statements
and led evidence. This is the clear purport
of sub-Section (5) of Section 145 of the
Code.

20. Here, what this Court finds is that
the contents of the application on which the
proceedings have commenced, do not, at
all, speak of any apprehension of breach of
peace. All that is said there is that the
respondents fear that they might be
dispossessed by the petitioners. A reading
of the application, which, in this case, is
made to the Magistrate under Section 145
of the Code, clearly does not show that a
dispute likely to cause breach of peace,
relating to an immovable property, is in the
offing. The Magistrate forwarded the
application for an inquiry by the police. In
taking that course of action, the Magistrate
was absolutely right. The police submitted
a report in the matter, which also shows
that the respondents apprehend that they
might be forcibly dispossessed by the
petitioners from the land in dispute. The
police report is absolutely silent about any
apprehension as to breach of peace arising
from the dispute existing between parties
claimed vis-à-vis the land in dispute. The
application by the respondents and the
police report together were the information
on which the Magistrate passed the
preliminary order under Section 145(1) of
the Code. It is this material on which he
assumed
jurisdiction
to
commence
proceedings.

21. This Court must remark that in the
absence
of
anything
either
in
the
respondent's
application
indicating
an
apprehension about breach of peace arising
from a dispute relating to an immovable
property or in the police report submitted
on that application, there was no warrant at
all for the Magistrate to have assumed
1 All. Jai Veer Singh & Ors. Vs. State of U.P. & Ors.
935
jurisdiction under Section 145 of the Code
and pass a preliminary order under subSection (1) of Section 145 of the Code. The
subsequent orders, which are all ancillary
to the assumption of the jurisdiction in subSection (1) of Section 145, would fall once
it is apparent that the Magistrate had no
jurisdiction in the matter, in the first
instance. The Magistrate perhaps, realizing
his
folly,
has
attempted
to
create
jurisdictional facts while passing the order
dated 11.11.2016 under Section 146 (1) of
the Code, attaching the property in dispute
and appointing a supurdgar. He says in that
order that during a routine inspection of the
area, he did a spot inspection and found
that there was tension prevalent between
the parties, relating to the land in dispute,
which is likely to cause breach of peace.
This mention in the record of proceedings
on 11.11.2016 while passing an order under
Section 146 (1) of the Code and much after
preliminary order under Section 145(1)
dated 27.07.2016 was passed, makes it
apparent that it is an attempt by the
Magistrate to create jurisdiction, post
initiation of proceedings. Even if it be
assumed that the Magistrate, on a spot
inspection, did find something for the first
time that an apprehension of breach of
peace existed, it was then that he could
have initiated fresh proceedings under
Section 145(1), treating it as a piece of
information. But on 27.07.2016, when the
preliminary order giving rise to these
proceedings
was
passed,
there
was
absolutely nothing in the information
before
the
Magistrate
about
any
apprehension of breach of peace. Also, the
Magistrate's remarks introducing a case of
apprehension of breach of peace midway
does not really disclose that there was any
such apprehension. The order shows it to be
more of a ipse dixit of the Officer, who
seems to be keen on validating the
proceedings before him, that he realized
were initiated without jurisdiction.

22. It must be remarked here that for
an Executive Magistrate to be perplexed
with
the
subtleties
of
law,
is
a
understandable predicament. The Executive
Magistrate's
are
lay
officers
and
proceedings of this complexity may go
awry before them. It is for this reason that
they are subjected to superintendence of the
learned Sessions Judge in revisions and
also of this Court, even though their
determinations are otherwise and not
subject to an appeal. But the learned
Additional Sessions Judge, who heard the
revision from the Magistrate's order, did
not deliver the Magistrate's folly with the
refinements of his forensic ability. He went
into the merits of the matter about
possession and title of parties, as it were an
appeal from a temporary injunction matter
in a civil cause. He has recorded the
following decisive findings :

muds firk th Jh iqRrw yky dk LoxZokl gks
tkus ds dkj.k [kljk ua0 359 esa 16 fM0 tehu buds
uke [krkSuh esa ntZ gS o budk dCtk gS ysfdu
fuxjkuhdrkZx.k t;ohj flag] #Lre flag] cnu flag
thriky iq=x.k izse flag o efgiky flag] vt; flag
iq=x.k lkSnku flag fuoklh vHk;iqj Fkkuk eksgEenkckn
mDr tehu ij tcjnLrh dCtk djuk pkgrs gS rFkk
foi{khx.k@vkosfndkx.k dks Mjk /kedkrs gSaA ftlls
vkosfndkvks dks Hk; gS fd ;g yksx mDr tehu ij
dHkh dCtk djus dh fQjkd esa gS ;g dj ldrs gSA
vk[;k e; uD'kk utjh ds vk/kkj ij /kkjk 145 na0
iz0 la0 ds vUrxZr dk;Zokgh fd, tkus gsrq miyC/k
djk;h x;h gSA mDr vk[;k ds lkFk layXu uD'kk
utjh ds voyksdu ls izdV gksrk gS fd dk0
la0&7@2 ds ifj'khyu ls izdV gksrk gS fd [kljk
la0 359 jdck 0-16 fM0 vkjkth [kMUtk jkLrk ds
if'pe [kkyh txg ds #i esa n'kkZ;k x;k gS mlds
mijkUr edku efgiky flag o #Lre flag cus n'kkZ,
x, gSA mDr vkjkth ds lEcU/k esa voj U;k;ky; dh
i=koyh ij [krkSuh dk0 la0 5 miyC/k gS ftlesa
fojklru foi{kh la0 1 o 2 dk uke ,0 lh0 vks0
pdcUnh ds vkns'kkuqlkj e`rdk eq0 Qqyk ds LFkku ij
936 INDIAN LAW REPORTS ALLAHABAD SERIES
ntZ gqvk gSA bl izdkj foi{kh la0 1 o 2 fcjklru
fookfnr lEifRr dh ekfyd o dkfct gSA blds
foijhr i=koyh ij fuxjkuhdrkZx.k dh vksj ls vius
LokfeRo ds lEcU/k esa dksbZ izys[k izLrqr ugh fd;k
x;k gSA blds vykok fuxjkuh i=koyh esa vk[;k
rglhynkj dh Nk;k izfr nkf[ky gS tks i=koyh ij
dk0 la0 18 ch@10 gSA ftlds ifj'khyu ls izdV
gksrk gS fd iqfyl }kjk rS;kj fd, x, uD'kk utjh
mijksDr dh iqf"V rglhynkj ds uD'ks ls gksrh gSA
mDr lEifRr ij l{ke izkf/kdkjh ,0 lh0 vks0
pdcUnh ds vkns'kkuqlkj foi{kh la0 1 o 2 dk uke
crkSj okfjl ntZ gqvk gS ftlds foijhr i=koyh ij
fuxjkuhdrkZx.k dh vksj ls dksbZ lk{; ugh gSA
blfy, fo}ku voj U;k;ky; }kjk ikfjr iz'uxr
vkns'k esa dksbZ fof/kd vFkok RkF;kRed =qfV ugh ikbZ
tkrh gSA

23. In recording all these findings, the
learned Judge also glossed over the fact
that the information before the Magistrate,
on the basis of which he passed the
preliminary order, only spoke about a threat
to the respondents' possession from the
petitioners. There was no material about an
apprehension of breach of peace. There
was, thus, no jurisdiction at all to initiate
these proceedings where the impugned
orders
have
been
passed.
In
this
connection, the decision of the Supreme
Court in Ashok Kumar v. State of
Uttarakhand & Others5 succinctly lays
down law thus :

7. We may notice, in the instant case,
the application was preferred by the
respondent under Section 145 CrPC and
on that application, a report was called
for and the Sub-Inspector of Police
submitted his report before the SDM on
1-10-2009. It is stated in the enquiry
report that the Sub-Inspector of the
village went to Subhashgarh and noticed
that even though the landed property
stood in the name of Mona Sharma yet it
was found that Ashok Kumar, the
appellant herein was in possession of the
land in question in Khasra No. 181. The
relevant portion of the report reads as
follows:

"It
is
the
submission
of
applicant Mona Sharma that both Ashok
Kumar and Narendra Kumar have taken
possession over her land and both have
stated that they have purchased land from
Bal Krishan, husband of Mona Sharma
whereas, this land comes in the category
of
10(ka),
which
cannot
be
sold/purchased.... In the land there is
situated under constructed house of
Ashok Kumar in present time and
eucalyptus and mango trees of Narendra
Kumar s/o Jairam r/o Subhashgarh are
standing."

24. The Magistrate's finding, on
which he has passed the impugned orders,
apart from being without jurisdiction, is
cryptic. It reads thus and no more :

esjs }kjk i=koyh ij miyC/k iqfyl vk[;k
,oa vfHkys[kh; lk{;ksa dk Hkyh Hkkafr ifj'khyu
fd;k x;kA iqfyl vk[;k esa mijksDr fookfnr
tehu ij vkosfndkvksa dk dCtk crk;k x;k gSA
/kkjk 145 n0 iz0 l0 esa LokfeRo@dCtk gksuk
vko';d gSA foi{khx.kksa }kjk ,slk dksbZ Bksl lk{;
izLrqr ugh fd;k gS] ftlls oknhx.kks dk dCtk
fl) u gks ldsA mijksDr foospukuqlkj eSa bl
fu"d"kZ ij igqaprk gwa fd bl U;k;ky; }kjk fnukad
27-07-2016 dks /kkjk 1451⁄411⁄2 n0 iz0 la0 ds vUrxZr
i{kdkjksa ds fo#) tkjh fd;s x;s vkns'k dh iqf"V
fd;k tkuk U;k;ksfpr izrhr gksrk gSA

25. A reading of the aforesaid
finding shows that there is not a word
said about apprehension of breach of
peace, which may invest the Magistrate
with jurisdiction. Also, the Sessions
Judge has not recorded any finding
specifically as to which party was in
possession on the date of the preliminary
order or within two months ante-dating
1 All. Smt. Savita Devi @ Savitri Singh & Anr. Vs. State of U.P. & Anr.
937
that order, or if the respondents were
dispossessed after the Magistrate made
the preliminary inquiry. In the absence of
specific findings on these matters, he
could
not
have
passed
the
order
impugned, which has been affirmed in
manifest error by the learned Additional
Sessions Judge.

26. In the result, this petition
succeeds and is allowed. The impugned
order dated 13.01.2017 passed by the
Sub-Divisional Magistrate, Sadar, District
- Farrukhabad in Case No. 30 of 2016,
under Section 145 of the Code, and the
order dated 24.05.2018 passed by learned
Additional Sessions Judge, Court No.
4/Special Judge (E.C. Act), Farrukhabad,
in Criminal Revision No. 168 of 2017 are
hereby quashed. The parties are free to
suit their rights on merits in the pending
civil suits. Since possession was taken
from the petitioners under an order of
attachment by the Magistrate in these
proceedings, the same shall be forthwith
caused to be restored by the SubDivisional Magistrate, Farrukhabad to the
petitioners, if not already restored, in
compliance with the interim order earlier
made in this case.

27.