Thus, him requiring the parties to attend

Thus, the object of section 145 is not to provide the parties with an opportunity of bringing their civil disputes before a Criminal Court, or maneuvering for possession for the purpose of subsequent civil litigation, although unfortunately, that is very often the actual effect of such proceedings.

The real object of this provision is to arm the Magistrate with an additional weapon for maintaining peace within his area. The Magistrate must, therefore, guard himself against an abuse of this provision, by persons whose object may be to get possession of the property, and drive the other side to figure as a Plaintiff in a civil suit and prove his title. (Gajadhar, —50 Cr. L.J. 967)

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In proceedings under S. 145, the Magistrate does not have to enter into questions of title or the rights to possession, and the foundation of his jurisdiction is the existence of a dispute likely to cause a breach of the peace. Pendency of a civil suit also does not fetter the hands of a Magistrate.

S. 145 further provides that after the written statements of the respective claims have been put in by the parties concerned, the Magistrate must peruse the statements, hear the parties, and receive such evidence as may be produced by them. Thereafter, without reference to the merits or the claims of any of the parties, the Magistrate must, if possible, decide whether any and which of the parties was in possession of the subject-matter of the dispute on the date of the order made by him requiring the parties to attend the Court.

If, however, it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months from the date on which the Police Officer’s report or other information was received by the Magistrate, or after the date but before the date of his order requiring the persons to attend the Court, he may treat the party so dispossessed as if that party was in possession on the date of his order.

However, the party called upon to attend, or any other interested person, can show to the Magistrate that no such dispute exists, or has existed, and in such a case, the Magistrate must cancel his order, and stay all further proceedings in the matter.

If the Magistrate comes to the conclusion that one of the parties was in possession of the subject-matter of the dispute, he must issue an order declaring such a party to be entitled to possession thereof, until he is evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction.

If any party to any such proceedings dies, the Magistrate may cause the legal representative of the deceased to be made a party to the proceedings, and can thereafter continue the inquiry.

If the Magistrate is of the opinion that any crop or other produce of the property (which is the subject of the dispute) is subject to speedy and natural decay, he can make an order for the proper custody or sale of such property, and upon completion of the inquiry, he can pass further orders for the disposal of the property or for the sale proceeds thereof, as the case may be.

The Allahabad High Court has observed that the proceedings under Section 145 are quasi-judicial and quasi-administrative in nature, and their object is to prevent a breach of the peace and maintain tranquility. (Bhagwat,—AIR 1967 All. 164)

However, before initiating any proceedings, the Magistrate must be satisfied about the following two conditions, viz.—

(i) That a dispute regarding immovable property exists; and

(ii) That such a dispute is likely to cause breach of the peace.

Once he is satisfied about these two conditions, he can pass a preliminary order, and thereafter make an inquiry, and then pass a final order. The Supreme Court has rightly observed that it is not necessary that, at the time of passing the final order, the apprehension of breach of the peace should continue to exist. (R.H. Bhutani v. Mani J. Desai—1969 1 S.C.R. 80)

It is also to be noted that the Magistrate’s jurisdiction under S. 145 depends upon there being a dispute which is likely to cause a breach of the peace. Therefore, when the right of the parties have already been determined by a competent Court, the dispute is at an end, and it is the duty of the Magistrate to maintain the rights of the successful party.

In such a case, the defeated party cannot be allowed to invoke the aid of the Magistrate and the police to neutralise the effect of the Civil Court’s decree, and it is not open to the Magistrate to ignore the decree. The proper course for a Magistrate in such a case is to take action under S. 107 of the Code. (Gobind,—6 Cal. 835)

It is also to be noted that proceedings under this section cannot be instituted with respect to movable property. Thus, a dispute concerning the offerings made at a temple is a dispute regarding movable property, and a Magistrate cannot make a declaration that one of the parties is in possession of such offerings. Similarly, proceedings under S. 145 in respect of livestock are without jurisdiction. So also, if a dispute is not concerning the building of a cinema, but is as regards a film to be exhibited therein, S. 145 would not apply.

A dispute relating to possession of a temple, however, comes within the provisions of S. 145, it being immaterial whether the temple is wholly or partly private property. So also, a dispute regarding an exclusive right to collect the entire toll from a market may be a subject of proceedings under this section.

Similarly, when there is a bona fide dispute about a fishery, proceedings under this section may properly be instituted. So also, a dispute as regards mines and minerals would fall under the purview of S. 145.

However, a Magistrate has no jurisdiction to order division of crops on the land between the parties. Nor can he pass an order that a person shall continue in possession until he has reaped the crops, and then give the crops to the other party. Similarly, a Magistrate is not competent under the section to pass an order directing the method by which possession is to be exercised or the agency by which the person in possession is to collect the profits. (Akaloo,—36 Cal. 986)

In a proceeding under this section, the Magistrate is bound to ascertain and define the land in dispute, and he has no jurisdiction to pass an order in respect of lands which are not covered by the initial proceedings. (Amriteswari,—7 C.W.N. 558)

If a party who is directed under S. 145 to conduct himself in a particular way does not comply with such direction, but conducts himself in such a way as to create an apprehension of the breach of peace, the wrong resulting from his misconduct may become a public wrong, and the contempt may be regarded as a criminal contempt. (Dulal Chandra,—AIR 1958 Cal. 474)

Remedies:

No remedy is available by way of a review. S. 362 prohibit a Magistrate from reviewing his final order. Thus, no Magistrate can review any final order passed either by himself or by his predecessor under S. 145. The remedy of the aggrieved person in such a case would be to approach a Civil Court.

However, a remedy by way of revision is available, and both the Session Judge and the High Court have revisional powers in the matter. Although the High Court is vested with powers of revision, yet any order passed by a competent Magistrate is not to be unduly interfered with by the High Court, except in exceptional cases. This is so because the object of such an order is to preserve the peace, and in any event, the aggrieved party does have a remedy by way of a civil suit. (Krishnepier, — 18 Cr. C.J. 23)

The High Court may, however, interfere in the following cases:

(i) Where necessary parties were left out or wrong persons were made parties; or

(ii) Where the Magistrate refused to receive evidence tendered to him; or

(iii) Where the Magistrate’s findings of facts regarding possession were perverse and contrary to a mass of unrebutted evidence; or

(iv) Where no order in writing was recorded by the Magistrate; or

(v) Where the Magistrate refused to issue process for the attendance of material witnesses; or

(vi) Where the Magistrate discarded the evidence altogether, and based his decision merely upon his local Inquiry; or

(vii) Where the Magistrate declared possession with a party who had long been out of possession.