Section 145 CrPC Can't Be Used To Evict Person Whose Possession Is Admitted: Gauhati High Court
The Gauhati High Court has held that where the fact that the petitioner is in possession of the disputed land is an admitted fact from the pleadings of the respondent himself, there is no bona fide dispute as regards possession and, therefore, the jurisdiction under Section 145 CrPC cannot be invoked. [2026 LiveLaw (Gau) 90]Justice Sanjeev Kumar Sharma, presiding over the case, observed,...
The Gauhati High Court has held that where the fact that the petitioner is in possession of the disputed land is an admitted fact from the pleadings of the respondent himself, there is no bona fide dispute as regards possession and, therefore, the jurisdiction under Section 145 CrPC cannot be invoked. [2026 LiveLaw (Gau) 90]
Justice Sanjeev Kumar Sharma, presiding over the case, observed, “The fact that the petitioner is in possession of the disputed land must be regarded as an admitted fact in view of the pleadings of the respondent herein in his application before the learned Magistrate. Hence, there is no bona fide dispute as regards the factum of possession of the disputed land.”
“Bare reading of sub-Section (1) of Section 145 shows that the conditions precedent for passing an order, under Section 145(1), are that the Magistrate must be satisfied, the satisfaction being that there is a dispute with regard the land or boundaries thereof, which is likely to cause breach of peace. Moreover, Section 145(1) Cr.PC requires the parties to submit written statements in order to enable the Magistrate to decide the question of actual possession, when the said question is itself not in dispute, there exists no issue to be decided by the Magistrate,” Justice Sharma further observed.
The criminal petition was filed under Section 482 CrPC seeking setting aside and quashing the order passed by the Additional District Magistrate, Hailakandi in the case under Sections 145/146(1) CrPC and the proceedings pending before the Additional District Magistrate.
The respondent had filed a complaint before the Additional District Magistrate alleging that he was the lawful owner and possessor of the suit land by right of inheritance.
According to the complaint, the petitioner had started business in the suit land, had initially paid monthly rent, but subsequently stopped paying rent and, when the respondent intended to make extension of the shop houses and godown, the petitioner and his brothers objected and tried to dispossess him, giving rise to every possibility of breach of public peace and tranquility.
On receipt of the complaint, the Additional District Magistrate called for a police report. The police reported that there was a land dispute between the parties and that both parties were very desperate and dangerous in nature and may be ordered not to work or move on the disputed land to maintain peace and tranquility. On the basis of the police report, the learned Additional District Magistrate attached the suit land under Section 146 CrPC.
Before the High Court, the petitioner contended that the respondent's own pleadings showed that the petitioner was residing in the house situated on the disputed land and, therefore, possession was an admitted position. It was submitted that when possession itself was not in dispute, there was no occasion for the Magistrate to exercise jurisdiction under Sections 145/146 CrPC.
Accepting the contention, the Court observed, “In short, thus, a Magistrate, upon drawing of the proceeding under Section 145 Cr.PC, has to determine, if possible, in exercise of his power under Section 145(4) Cr.PC, as to who was in possession of the disputed land on the date of drawing of the proceeding. Conversely, the Magistrate cannot draw a proceeding under Section 145 Cr.PC, if the materials on record clearly indicate that the person, who is sought to be evicted by invoking the Magistrate's jurisdiction under Section 145 Cr.PC, had been in possession of the disputed land for a period longer than two months before the date, when either the police report was made or the information, which could enable the Magistrate to draw the proceeding, was given.”
The Court further held, “Thus, in the circumstances of the present case as adverted to herein above, the vital condition requisite for assumption of jurisdiction under Section 145 Cr.PC was lacking and thus, the proceedings impugned must be held to be without jurisdiction.”
“The above being said, allowing continuance of the proceedings impugned would also amount to an abuse of the process of the law,” the Court added.
Consequently, the Court quashed the impugned proceedings and allowed the petition.
Case Name: Zahirul Haque Laskar v. State of Assam & Anr.
LL Citation: 2026 LiveLaw (Gau) 90
Case Number: Crl. Pet. No. 1292/2023