Order of Executive Magistrate set aside holding it to be dehors Section 145 CrPC

Meghalaya High Court: A Single Judge Bench comprising Mohammad Yaqoob Mir, CJ. allowed a revision petition filed against the order passed by Executive Magistrate under Section 145 CrPC.

The petitioner was in possession of the disputed plot for last six decades; the respondent asked her for arrangement of tenancy issue; in September 2016, a truck full of boulders was unloaded in the premises by an unknown party. Pursuant to the same, a complaint was filed which was assigned to the Executive Magistrate for disposal. By the order impugned, the Magistrate ordered the petitioner to stop any construction in the disputed premises and status quo was ordered to be maintained. The said order was challenged by the petitioner.

The High Court found the order to be dehors the law. It was emphasized that the object of Section 145 is to save a particular situation vis-a-vis land, etc., i.e. where there is an apprehension of breach of peace, the Magistrate simply has to ascertain the physical possession of the land without referring to the title or right to possess. It was observed that the same had totally escaped the attention of the Magistrate. The order impugned, that was shown to be interlocutory, in effect had determined the right of parties, and as such had trappings of a final order. Furthermore, the procedure as prescribed under Section 145 was not followed. That being so, the revision petition was held maintainable. The counsel for the parties submitted that as on date, breach of peace does not exist, and therefore there was no requirement to continue with the proceedings under Section 145. Resultantly, the proceedings pending before the Executive Magistrate along with the order impugned were quashed. The petition was allowed in the terms above. [Malati Das v. Carmel Makri,2018 SCC OnLine Megh 122, dated 10-8-2018]

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