MD Juned Ahmad Alias Juned Ahmad Diggar Vs the State of Jharkhand

(2025:JHHC:36594)

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 402 of 2025

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Md. Juned Ahmad @ Juned Ahmad Diggar, aged about 42 years, son of Md. Yunus, resident of H. No. 55, Ward No. 14, Muslim Tola, Haranchandra Chatarji Road, Purandaha, Deoghar, PO & PS – Deoghar, District – Deoghar, Jharkhand.

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… … Petitioner

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Versus

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1. The State of Jharkhand.

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2. The Deputy Commissioner, Deoghar, PO & PS – Deoghar, District- Deoghar, Jharkhand.

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3. The Sub-Divisional Magistrate, Deoghar, PO & PS – Deoghar, District- Deoghar, Jharkhand.

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4. Md. Azad @ Azad Mian, Son of Khalil Mian.

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5. Md. Zamir Ansari, Son of Kuril Mian @ Md. Abdul Gani. (Opp. Party Nos. 4 and 5 are resident of Mauza – Purandaha, PO & PS & District – Deoghar, Jharkhand).

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… … Opp. Parties

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For the Petitioner : Mr. Indrajit Sinha, Advocate : Mr. Awanish Shekhar, Advocate For the State : Ms. Kumari Rashmi, Addl. P.P. For the Opp. Nos. 2 to 5 : Mr. Pran Pranay, Advocate ------

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with the prayer to quash the order dated

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Cr. M. P. No. 402 of 2025

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23.12.2024 passed in Criminal Revision No. 103 of 2024 whereby and whereunder the learned Sessions Judge, Deoghar has set aside the order dated 26.06.2024 passed by learned Sub-Divisional Magistrate, Deoghar, wherein the learned Sub-Divisional Magistrate, Deoghar, dropped the proceeding under Section 145 of the Cr.P.C.

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3. The brief fact of this case is that the Opposite Party Nos. 4 and 5 filed an application before the learned Sub-Divisional Magistrate, Deoghar and basing upon the same a proceeding under Section 144 of the Cr.P.C. was initiated vide order dated 02.06.2023 and later on, the same was converted into a proceeding under Section 145 of the Cr.P.C. Learned Sub-Divisional Magistrate, Deoghar vide order dated 26.06.2024 dropped the proceeding of Criminal Miscellaneous No. 89 of 2023 on the following two grounds:-

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I. That as regards the same landed property orders/judgments have been passed by different Courts including Hon’ble High Court and civil proceeding has achieved finality but still issues of title, possession are being raised by rival parties which cannot be decided in a proceeding under Section 145 of the Cr.P.C.

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II. That there is a petition under Section 145(5) Cr.P.C. filed by the OP with prayer to drop the ongoing proceeding and there is no any information received regarding any existence or likelihood of breach of peace between the parties.

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4. Learned Sessions Judge considered the settled principles of law relying upon the judgment of the Hon’ble Supreme Court of India in the case of Kunjbihari Vs. Balram & Another reported in (2006) 11 SCC 66 wherein it was held by the Hon’ble Supreme Court of India that when the rights of the parties have already been adjudicated upon, the proceeding under Section 145 of the Cr.P.C., is an abuse to the process of Court. Taking a cue from a judgment of the Hon’ble Supreme Court of India in the case of Amresh Tiwari Vs. Lalita Prasad Pandey reported in ( 2000) 4 SCC 440 which is also reported in AIR 2000 SC 1504, wherein it was observed by the Hon’ble Supreme Court of India that in every case where a civil suit is filed, proceeding under Section 145 of the Cr.P.C. would never lie. It is only in case where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court that proceeding under Section 145 of the Cr.P.C. should not be allowed to continue and went on to hold that the order of learned Sub-Divisional Magistrate impugned before it suffers from patent impropriety and is not correct course of action since Section 145 of the Cr.P.C. is intended to provide remedy for the prevention of breach of peace arising out of dispute relating to the property.

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5. The learned Sessions Judge considered the second ground that in view of the contention of the members of the first party who are the Opposite Party Nos. 4 and 5 of this Cr.M.P. that still there is dispute pending between them hence, the learned Sub Divisional Magistrate ought not have come to the conclusion that there was no existing breach of peace or likelihood of breach of peace between the parties and set aside the impugned order dated 26.06.2024 and directed the learned Sub-Divisional Magistrate to proceed with the case and pass a fresh order considering all materials on record.

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6. It is submitted by the learned counsel for the petitioner that the impugned order passed by the learned Sub-Divisional Magistrate, Deoghar in Criminal Revision No. 103 of 2024 is misconceived. The learned Sessions Judge failed to take note of the fact that in the petition filed by the members of the first party under Section 144 of the Cr.P.C. in Para No. 6, there is a categorical admission on the part of the members of the first party that the petitioners herein who were the members of the second party before the learned Sub-Divisional Magistrate are in possession of the disputed land and were carrying on construction in full speed over the said land and this admission of the first party that the second party members were in possession of the disputed land excludes the jurisdiction of the Executive Magistrate being the learned Sub-Divisional Magistrate to maintain any

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proceeding under Section 145 of the Cr.P.C. It is next submitted that there is absolutely no averment in the petition filed by the members of the first party before the Subdivisional Magistrate that they were in possession of the disputed land at any point of time but all they intend to contend that since they were the coparceners of the members of the second party, so the possession of one of the coparceners amounts to the possession of the other coparceners; but as this claim of the petitioner has already been turned down by the first Appellate Court being the Third Additional District Judge, Deoghar, in Title Appeal No. 32 of 1994 dated 06.01.1999 and the same has been affirmed by the co-ordinate bench of this Court in Second Appeal No. 129 of 1999 vide order dated 10.09.2002; such contention was without any merit.

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7. It is next submitted by the learned counsel for the petitioner by drawing attention of this Court to the said order dated 10.09.2002 of the co-ordinate bench of this Court in Second Appeal No. 129 of 1999 that therein it has categorically been recorded by the co-ordinate bench of this Court that the Settlement Commissioner was satisfied with the order of the Assistant Settlement Officer who after recording evidence and local inspection has found that the predecessor of the members of the first party had no share in the disputed land and the co-ordinate bench went on to observe that the same has rightly been

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held that it was a question of fact which has been decided on evidence and dismissed the Second Appeal accordingly.

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8. It is next submitted that the judgment of the co-ordinate bench in S.A. No. 129 of 1999 having not been challenged in any superior court, the same has attained finality and this aspect was failed to be considered by the learned Sessions Judge.

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9. Learned counsel for the petitioner next relies upon the order of the Hon’ble Supreme Court of India in the case of Mohd. Abid & Others Vs. Ravi Naresh & Others reported in 2022 SCC OnLine SC 2416 wherein in Para No. 4 the Hon’ble Supreme Court of India has reiterated the settled principles of law that once the Civil Court is seized of the matter, it goes without saying that the proceeding under Section 145 / 146 of the Cr.P.C. cannot proceed and must come to an end. Hence, it is submitted that the impugned order passed by the learned Sessions Judge in Criminal Revision No. 103 of 2024 dated 23.12.2024 being not sustainable in law, be quashed and set aside.

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10. Learned Addl. P.P. and learned counsel for the Opposite Party Nos. 4 and 5 on the other hand vehemently opposed the prayer and submitted that there is no adjudication of the possession of the parties in the connected Tittle Suit. So, the learned Sub-Divisional Magistrate has committed an illegality by dropping the proceeding under Section 145 of the Cr.P.C. merely on the ground that the right and title of the

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parties have been adjudicated by the competent Civil court. It is next submitted that the learned Sub-Divisional Magistrate has also committed a grave error by holding that there is absence of any chance of breach of peace which is against the weight of the material on record. Hence, it is submitted that the learned Sessions Judge having rightly set aside the same, this Cr.M.P. being without any merit, be dismissed.

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11. Having heard the rival submission made at the bar and after going through the materials available on record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case Bhinka & Other Vs. Charan Singh reported in AIR 1959 SC 960 that in passing an order under Section 145 of the Cr.P.C., the Magistrate does not purport to decide a party’s title or right to possess the land but expressly reserves that question to be decided in due course of law. The life of the said order is coterminous with the passing of a decree by a Civil Court and the moment a civil court makes an order of eviction, it displaces the order of the criminal court.

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12. Under Section 145 (4) of the Code of Criminal Procedure, the Magistrate is vested with the power of to decide whether any and which of the parties was at the date of the order made by him under

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Section 145 (1) of the Code of Criminal Procedure, in possession of the subject of the dispute.

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13. Now coming to the facts of this case as already indicted in Para No. 6 of the petition under Section 144 of the Cr. P.C. which proceeding was later on converted to the proceeding under Section 145 of the Cr. P.C., the members of the first parties who are the Opposite Party Nos. 4 and 5 of this Cr.M.P. have averred that, the members of the second party were carrying on construction rapidly over the disputed land and when the members of the first party tried to restrain them then they threaten and beat up the members of the first party and abused them and threatened them to go away from the plot, otherwise, the members of the first party can face dire consequences and also threatened them to be killed. There is no averment anywhere in the petition under Section 144 of the Cr.P.C., which was later on converted to proceeding under Section 145 of the Cr.P.C. or anywhere else that the petitioner was in possession of the disputed land. They claimed their possession on the basis, that the disputed property is a joint property of the members of the first party and the second party. But such plea of the members of the first party who are the Opposite Party Nos. 4 and 5 of this Cr.M.P. has finally been adjudicated by the competent Civil Court which has been upheld by the co-ordinate bench of this Court in Seconal Appeal No.

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129 of 1999 vide order dated 10.09.2002. So, the learned Sessions Judge has committed a grave illegality by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Amresh Tiwari Vs. Lalita Prasad Pandey (supra), because here is a case, where the claim of the possession based on joint ownership have been turned down by the competent Civil Court and which has attained finality and the same is not open to be agitated again in the proceeding under Section 145 of the Cr.P.C., as the same will amount to an abuse of the process of Court.

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14. Similarly, in absence of any material on record to show that the apprehension of breach of peace continued till 26.06.2024; when the Sub-Divisional Magistrate, Deoghar dropped the proceeding under Section 145 of the Cr.P.C., the learned Sessions Judge, Deoghar has committed a grave illegality by finding fault with the order dated 26.06.2024 passed in Criminal Miscellaneous Case No. 89 of 2023 by Learned Sub-Divisional Magistrate, Deoghar by coming to the conclusion that there is no breach of peace or likelihood of breach of peace between the parties.

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15. Accordingly, in the considered opinion of this Court, the impugned order dated 23.12.2024 passed by learned Sessions Judge, Deoghar in Criminal Revision No. 103 of 2024 being not sustainable in law, is quashed and set aside and the order dated 26.06.2024 passed

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by the Learned Sub-Divisional Magistrate, Deoghar, in Criminal Miscellaneous No. 89 of 2023, is restored.

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16. Accordingly, this criminal miscellaneous petition is allowed.

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17. In view of the disposal of this criminal miscellaneous petition,

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