Analysis of Section 145 CrPC

An Analytical Study of Section 145 of the Code of Criminal Procedure, 1973: Jurisprudence and Procedural Imperatives in India

I. Introduction

Section 145 of the Code of Criminal Procedure, 1973 (CrPC) stands as a crucial provision within the Indian legal framework, designed primarily for the prevention of offences concerning disputes over immovable property that are likely to cause a breach of the public peace. This section empowers an Executive Magistrate to intervene in such disputes, not to adjudicate upon the title or ownership rights of the parties, but to determine, in a summary manner, which party was in actual physical possession of the subject of dispute on a relevant date. The overarching objective is to avert violence and maintain public order by temporarily settling the question of possession, leaving the parties to seek a definitive resolution of their rights from a competent civil court. This article undertakes a comprehensive analysis of Section 145 CrPC, drawing upon significant judicial pronouncements and statutory interpretations to elucidate its scope, procedural requirements, and its interplay with other legal provisions, particularly Section 146 CrPC and civil litigation.

II. The Object and Scope of Section 145 CrPC

The fundamental object of a proceeding under Section 145 CrPC is to prevent a breach of the peace arising from disputes over immovable property (Athiappa Gounder And Others v. S.A Athiappa Pandaram, Madras High Court, 1966; Kochadai Naidu And Another v. Nagayasami Naidu And Others, Madras High Court, 1960). The Supreme Court in Bhinka And Others v. Charan Singh (1959 AIR SC 960) characterized an order under Section 145 CrPC as "merely a provisional police order based upon the fact of previous possession and it is made only for the purpose of preventing a breach of the peace." This underscores that the jurisdiction is founded upon the apprehension of a breach of peace (Bhinka And Others v. Charan Singh, 1959; R.H Bhutani v. Miss Mani J. Desai & Others, 1968 AIR SC 1444).

The proceedings are summary in nature, and the Magistrate's inquiry is confined to the question of actual possession, without reference to the merits or claims of any party to a right to possess the subject of dispute (State Of Bihar v. Hari Mishra And Another Opposite Party, Patna High Court, 1964; TARINI SAIKIA v. PUTUL KALITA AND ANR., Gauhati High Court, 2024). As observed in Bhinka And Others v. Charan Singh (1959), such an order is made "irrespective of the rights of the parties." Consequently, the order does not confer any title and is subject to the decision of a competent civil court (Shanti Kumar Panda v. Shakuntala Devi, 2004 SCC 1 438; Mahar Jahan And Others v. State Of Delhi And Others, 2004 SCC 13 421). The relief granted is extraordinary, intended for situations where there is a likelihood of breach of peace in a given locality (Kaushal Mishra And Others v. Raj Kumar Mishra, Gauhati High Court, 2007).

III. Initiation of Proceedings and Preliminary Order

A Magistrate can initiate proceedings under Section 145(1) CrPC upon being satisfied from a police report or "other information" that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof. The term "other information" has been interpreted broadly to include applications by dispossessed parties, and the absence of a police report does not preclude the Magistrate from acting (R.H Bhutani v. Miss Mani J. Desai & Others, 1968). The Magistrate must be satisfied about the likelihood of a breach of peace and the identity of the subject matter (TARINI SAIKIA v. PUTUL KALITA AND ANR., 2024).

Upon such satisfaction, the Magistrate is required to make an order in writing (preliminary order), stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend the court and to put in written statements of their respective claims as respects the fact of actual possession. It is imperative that the Magistrate applies their mind independently to the materials on record before passing a preliminary order and subsequently a final order (Shamim Alam v. Sajjid Hussain And Another, 2005 SCC 10 551).

IV. Inquiry into Possession

Sub-section (4) of Section 145 CrPC outlines the procedure for inquiry. The Magistrate must peruse the statements, documents, and affidavits put in by the parties, hear them, receive all such evidence as may be produced, take further evidence if necessary, and then decide, if possible, which party was in possession on the date of the preliminary order (State Of Bihar v. Hari Mishra And Another Opposite Party, 1964; Kolha Jena v. Pravakar Patra & Another Opp. Parties., Orissa High Court, 1984). The focus remains strictly on "actual possession" (TARINI SAIKIA v. PUTUL KALITA AND ANR., 2024).

The relevant date for determining possession is ordinarily the date of the preliminary order passed under Section 145(1) (Kochadai Naidu And Another v. Nagayasami Naidu And Others, 1960). However, the first proviso to Section 145(4) introduces a crucial deeming fiction. It states 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 the preliminary order, the Magistrate may treat the party so dispossessed as if that party had been in possession on the date of the preliminary order (Kolha Jena v. Pravakar Patra & Another Opp. Parties., 1984). The Supreme Court in R.H Bhutani v. Miss Mani J. Desai & Others (1968) affirmed the application of this proviso, allowing the dispossessed party to be deemed in possession. This provision empowers the Magistrate to restore possession to a party forcibly and wrongfully dispossessed (Jhummamal Alias Devandas v. State Of Madhya Pradesh And Others, 1988 SCC 4 452; Shatrughan Mishra Shatrughu Mishra Petitioner v. State Of Jharkhand And Others Opposite Parties, Jharkhand High Court, 2012). The Jharkhand High Court in Shatrughan Mishra (2012) opined that this power of restoration is implicit even if dispossession occurs during the pendency of the proceedings, arguing that to hold otherwise would render the provision meaningless.

The Supreme Court in Shamim Alam v. Sajjid Hussain And Another (2005) clarified that the finding of actual possession should be with reference to the date contemplated by Section 145(4) (i.e., the date of the preliminary order or within the two-month window under the proviso), not merely the date of passing the preliminary order itself if the proviso is applicable.

V. The Interplay with Section 146 CrPC: Attachment of Property

Section 146 CrPC provides for the attachment of the subject of dispute and appointment of a receiver. This power can be exercised if the Magistrate at any time after making the order under Section 145(1) considers the case to be one of emergency, or if, upon inquiry under Section 145, the Magistrate decides that none of the parties was in such possession as is referred to in Section 145, or is unable to satisfy themself as to which of them was then in such possession (Section 146(1) CrPC; Ashok Kumar v. State Of Uttarakhand And Others, 2013 SCC 3 366; State Of Bihar v. Hari Mishra And Another Opposite Party, 1964).

The Supreme Court in Ashok Kumar v. State Of Uttarakhand And Others (2013) emphasized that Sections 145 and 146 CrPC together constitute a scheme and Section 146 cannot be separated from Section 145. It can only be read in the context of Section 145. The Court further clarified that the "emergency" contemplated under Section 146(1) implies a situation that threatens law and order, necessitating immediate intervention. An attachment order was deemed erroneous when a civil court was already seized of the dispute and no actual emergency was established (Ashok Kumar v. State Of Uttarakhand And Others, 2013).

Importantly, the Supreme Court in Mathuralal v. Bhanwarlal And Another (1979 SCC 4 665) held that an attachment under Section 146(1) due to an emergency does not terminate the Magistrate's authority to proceed with the inquiry under Section 145. The Magistrate retains jurisdiction to determine possession without prematurely abdicating it to a civil court.

VI. Relationship with Civil Court Proceedings

The orders passed under Section 145 CrPC are explicitly subject to the final determination of rights by a competent civil court. The Supreme Court in Shanti Kumar Panda v. Shakuntala Devi (2004) held that orders under Sections 145 and 146 CrPC do not bind competent civil courts, which possess the autonomy to independently assess and adjudicate possession disputes. This principle was earlier enunciated in Bhinka And Others v. Charan Singh (1959).

The pendency of civil litigation concerning the same property often raises questions about the propriety of initiating or continuing Section 145 proceedings. The Supreme Court in Ram Sumer Puri Mahant v. State of U.P (1985 1 SCC 427), as cited in several High Court judgments (e.g., Kaushal Mishra And Others v. Raj Kumar Mishra, 2007; Sohan Lal And Others…(Petitioners); v. Lalaram And Others…(S), Allahabad High Court, 1991), discouraged parallel criminal proceedings under Section 145 CrPC when a civil suit is pending, particularly when the question of possession is involved and parties can approach the civil court for interim relief. In Mahar Jahan And Others v. State Of Delhi And Others (2004), the Supreme Court quashed Section 145 proceedings where the parties had already approached the civil court for the same property, noting that the criminal court's order would always be subject to the civil court's decision. Similarly, if the rights of parties have been adjudicated by a civil court, such as through a compromise decree, Section 145 proceedings are not justified (Kamal Singh v. State Of Uttaranchal, Uttarakhand High Court, 2007, citing Kunjbihari Vs Balram & another, (2007) 1 SCC (Cri) 376).

The Allahabad High Court in Ram Raj And Ors. v. State Of U.P. And Ors. (1995) stated that when a civil suit is pending and an injunction has been granted, Section 145 proceedings shall not lie. The Magistrate should determine as a preliminary issue whether the subject matter is the same, whether the criminal proceeding amounts to a parallel proceeding, and whether the party can approach the civil court for an appropriate remedy. However, an exception was noted in Prakash Chand Sachdeva v. State And Another (1994 SCC CRI 438), where the Supreme Court observed that the ratio of Ram Sumer Puri Mahant might not apply where there is no dispute about title, parties are co-owners, and one party acts forcibly and unlawfully. Furthermore, a Magistrate should respect a delivery of possession made under the orders of a civil court (Sheonarayan Singh and others v. Bharath Singh and others, Patna High Court, 1953).

VII. Procedural Aspects and Finality of Orders

The Magistrate's final order under Section 145(4) CrPC, declaring a party to be entitled to possession until evicted in due course of law, must be reasoned and based on an independent application of mind to the materials on record (Shamim Alam v. Sajjid Hussain And Another, 2005). A bald observation that a party was in possession is insufficient.

Proceedings under Section 145 CrPC, being primarily concerned with public interest in preventing breaches of peace, cannot be dismissed for default due to the absence of the informant or a party (Ram Yagya…(Applicant); v. State And Others…(Opposite Parties)., Allahabad High Court, 1982). Once a preliminary order is passed, the Magistrate’s duty is to continue the proceedings and decide the question of possession, unless it is shown under Section 145(5) that no dispute likely to cause a breach of peace exists or has existed. The preliminary order can only be cancelled if the parties satisfy the Magistrate that no such dispute exists or has existed (Ram Yagya, 1982).

An application made to a Magistrate under Section 145 CrPC is not a complaint as it does not relate to an offence; the action taken is preventive and provisional (TARINI SAIKIA v. PUTUL KALITA AND ANR., 2024).

VIII. Conclusion

Section 145 of the Code of Criminal Procedure, 1973, serves as a vital instrument of preventive justice in India, aimed at maintaining public order by summarily deciding questions of actual possession in disputes over immovable property that threaten to cause a breach of the peace. Judicial interpretations have consistently emphasized its provisional nature, the limited scope of the Magistrate's inquiry, and its subservience to the decisions of competent civil courts regarding title and substantive rights. The procedural safeguards, including the requirement for a reasoned order, the conditions for attachment under Section 146 CrPC, and the nuanced approach when civil litigation is pending, are critical to ensuring that the exercise of power under this section remains within its intended legal confines. While providing a swift mechanism to avert immediate conflict, the jurisprudence surrounding Section 145 CrPC underscores a careful balance between the urgent need to maintain peace and the due process of adjudicating property rights through established civil legal channels. Adherence to these principles by Magistrates is paramount to upholding both public tranquility and the rule of law.

IX. References