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Public Nuisance Relating To Immovable Property Under Criminal Procedure Code, 1973

Section 145 of the CrPC governs the procedure to be followed when a dispute regarding ownership of immovable property arises between two or more parties. The section is applicable to any situation where two or more parties claim ownership of a particular piece of immovable property, and one of the parties is in possession of the property.

In case of any appeal by any of the parties, the Magistrate is required to refer the matter to the civil court. In some cases, the Magistrate may, on his own, refer the matter to the civil court. The decision of the Magistrate is binding on the parties, and any further dispute must be referred to the civil court.

However, the Magistrate may, in his discretion, order an appeal to the civil court if he feels that the circumstances of the case warrant it. Section 145 of the CrPC is a very important provision as it provides a practical solution to disputes regarding ownership of immovable property. The section is also applicable in cases of disputes over land or houses. The provision helps to ensure that a dispute is decided quickly and with finality, and not dragged on for long periods of time.

Public nuisance is based on the principle of civil law stated with the help of maxim as sic uteretuout rem publicam non laedas, which means 'enjoy your property in such a way as not to injure the rights of the public'[i]. Initially, in India the environmental problems used to be addressed through private law doctrines such as trespass, nuisance, strict liability, or negligence or according to the remedies available under the Indian Penal Code or the Criminal Procedure Code.

The Criminal Procedure Code, 1973, commonly known as the CrPC, is the main legislation governing criminal procedure in India. Under which the provisions of chapter X of CrPC should be worked so as to not become a nuisance themselves to the community at large[ii].

The magistrate issues orders to the police to take necessary measures in order to prevent any breach of peace concerning immovable property. The magistrate also has the power to issue orders for the removal of any nuisance which is likely to cause the breach of peace concerning immovable property.

The magistrate can also order the arrest of any person who is likely to cause breach of peace concerning immovable property. Further, the magistrate can also order the confiscation of any property or document which is likely to cause breach of peace concerning immovable property.

In order to ensure that breach of peace concerning immovable property is prevented, the magistrate can also issue orders to the police to take necessary measures in order to prevent any breach of peace concerning immovable property. The magistrate can also direct the police to take necessary measures such as patrolling, regulating traffic, and maintaining law and order in the vicinity of the immovable property.

The magistrate is empowered with the special powers under the Criminal Procedure Code (CrPC) to take all necessary steps to prevent any breach of peace concerning immovable property. It is the responsibility of the magistrate to ensure that peace and order is maintained in and around the immovable property.

Section 145 of Criminal Procedure Code, 1973 Procedure where dispute concerning land or water is likely to cause breach of peace:

  1. Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual Possession of the subject of dispute.
  2. For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
  3. A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
  4. The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:
    Provided 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 his order under subsection (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
  5. Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
  6. (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

    (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).

  7. When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
  8. If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
  9. The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
  10. Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.[iii]

Substantive and Procedural law

The provisions under section 145 of the Code of Criminal Procedure, 1973 provide a machinery to deal with emergent situations that are a part of public nuisance. To understand the section as a whole, we need to look at the definition of 'public nuisance' that is given under section 268 of the Indian Penal Code, 1860 as, a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right[iv].

This section gives two kinds of nuisances, that is public nuisance and private nuisance but are not completely independent of each other as the occurrence of one may also attract the other one, right there. Determining the category of the nuisance of it being dangerous to the public as it may be permanent, recurring, or temporary is of significance in order for the state officials to act upon.

It could aid in understanding that the definition of 'public' under s. 12 of IPC, 1860 includes any class of the public or any community [v]. Generally referring to the locality we live in or the people we live around can be inter retated under this definition.

When it comes to acting on the public nuisances, it is usually done by bringing into notice of such incident to the nearest police station with the help of an FIR, or one could also report the incident to the Magistrate. The Magistrate may then direct the police to gather information about the particular incident and take an appropriate action to avoid any kind of public discourse.

There is a division of Magistrates that is defined under Cr. P.C. as:
s. 20(1) - District Magistrates, s. 20(2) - Additional District Magistrate, s. 20(4) - Sub-Divisional Magistrates, s. 20 - Executive Magistrates, s. 20(3) - Subordinate Executive Magistrates, s. 21 - Special Executive Magistrates. Based on the work allocation by the Executive Magistrates they would exercise the powers granted to them under the code, s. 129(1) - Any Executive Magistrate is competent to command an unlawful assembly, actual or potential, to disperse, s. 129(2) - Any Executive Magistrate, may disperse such assembly by use of Civil Force and s. 130 - If such assembly cannot be dispersed otherwise, the Executive Magistrate of the highest rank present may cause it to be dispersed by armed forces[vi].

Other than this, a District Magistrate or Sub-Divisional Magistrate or any Executive Magistrate has the power to deal with public nuisance on the behalf of the State Government by passing a conditional order for the removal of such nuisance under s. 133, make an inquiry as to why a public right was denied under s. 137, inquire whether the conditional order should be confirmed or modified and the proceedings dropped under s. 138, may issue injunction on the pending inquiry to prevent imminent danger or any serious injury of any kind to the public under s. 142 read with s. 133 and any Magistrate may prohibit repetition or continuance of public nuisance under s. 143[vii].

The Executive Magistrate hence has the power to intervene and tackle disputes that are related to land or water that are likely to breach public tranquillity under the s. 145 of the Code in reference to the s. 144 and direct any person either to abstain from causing any obstruction, annoyance or harm to any other person or cause life or security threat to the public by engaging into riots or other sorts of affrays.

When the parties are unsure of the title of a property or claim of right, there are high chances of breach of peace. The Magistrate by this apprehension solely can pass an order under these provisions. Then the findings in such case can be forwarded to the Civil Court to announce the title of the property rightly to the owner by the Magistrate under his own discretion.

The inquiry is confined to questions such as who was in possession on the date of order and call upon the written statements to support their claims. The order is served as summons upon both the parties, a hearing of the statements and weighing the evidence. The declaration as to the possession cannot be done without the decree of a Civil Court, as this is a matter of the civil matter[viii].

If a case is pending in the Civil Court and there is no more apprehension of breach of peace, it was held that the order attaching the property would continue till it is decided by the Civil court; this does not directly take away the Magistrate's jurisdiction[ix]. When both parties admitted being the co-owners of a plot in dispute.

Obtaining an order from the Civil Court the possession and maintaining the status quo then parallel proceedings in such a case was held to be abuse of the process of Criminal Court and Magistrate's order attaching the same property in dispute to an appointed receiver was therefore quashed, this was declared in the case of Charan Singh v. SDM, Jallandhar[x]. Till this day, the decision on this point is pending and Andhra High Court opined that a three-judge bench should sit and conclude the object of s.145 of CrPC[xi].

To understand each sub-section, we need to see the intention behind words mentioned therein by the legislature. Starting with sub-section (1) states that when a dispute arises, any of the parties can file a written complaint to the District Magistrate or any other executive magistrate empowered by the state government to take cognizance of such disputes.

Although the section is self-explanatory, it is indeed necessary to examine each sub-section as it underlines the powers of an Executive Magistrate. But by the amendment in the State of Maharashtra during 1978, the statute also allows a Judicial Magistrate to pass an emergent order in case of a situation where there is a clear indication of the breach of peace taking place.

But for which the Judicial Magistrate must obtain permission from the Executive Magistrate so as to exercise this power under the jurisdiction. The Magistrate is then required to issue a written notice to the parties asking them to appear before him. He can then make enquiries into the matter, hear the parties, and examine any evidence presented by them. He is also required to examine any documents and decide the dispute as soon as possible.

It is essential for the Magistrate to be 'satisfied' either from a police report or for other information of the apprehension of peace, failing to do so would not attract this section on his discretion and such facts must be set out prima facie as the reasons leading to the satisfaction[xii], according to the Supreme Court. The term 'dispute' includes dispute relating to the right to perform religious practices in a public temple if it is likely to cause breach of peace that was held in Pandurang Govind case by Bombay High Court[xiii].

The consequent necessity to initiate proceedings and take action is the foundation of the jurisdiction, it does not mean that the apprehension of breach of peace must be ongoing while passing the final orders under sub-section (6) because Res judicata will not apply here[xiv].

The order need not be strictly in writing rather it should be addressed as a public proclamation setting the Magistrate's beliefs and summoning the parties to the court. It should serve the same purpose as a notice to show cause under s. 107, 108, 109 and 110, or a conditional one under s. 133 giving the parties a complete idea of the case they must meet[xv].

The parties concerned may include all the persons who may be concerned against the dispute, who claims to be in possession of the disputed land, as agent, or manager for, the actual proprietors who aren't the residents within the appellate jurisdiction of the High Court except the receiver appointed by the Court[xvi].

It would also apply to joint owners of a property if the dispute is relating to the right to collect rents or right to possession of the manager. Sub-section (2) includes buildings, markets, fisheries, rents and profits of the land, crops or other produce of the land, standing trees, right of ferry and if necessary, police officers would be appointed to take under their custody the valuable machinery, coal and other movables in case of a factory, subjected by the Magistrate[xvii].

'Service of summons' stated under sub-section (3) lays down the essentials of the service of the order of the Magistrate in the manner of summons on the persons affected and publication of the same order at a conspicuous place near the disputed venue, failure of which would result in nullifying the proceedings[xviii]. If the parties are present irrespective of the essentials being completed, then the proceedings may not be termed as invalidated.

Sub-section (4) grants the question of possession that has to be determined with reference to a particular point of time, initial date of order, or if it is a case of forced dispossession, the date within two months on the receipt of police report or before the date of the order so passed. The Magistrate has to show that the statements given by the parties as accepted along with the documents produced in evidence and critically examined before passing the order.

The words 'forcibly and wrongfully dispossessed' means use of force and power to remove from possession the premises, ousted, ejected, or excluded unjustified or illegally[xix]. The act of removing a trespasser from the property would not result in dispossession. This application can be filed within a period of three years from the date of the order under this sub-section[xx].

The essence of this act is based on the dispute likely to cause breach of peace in a territory and hence if the Magistrate finds no such apprehension to his own satisfaction, must hold his hands, and cancel the order under the sub-section (5) of this section[xxi].

It was held by the Supreme Court as to the declaration of a party's entitlement of possession under sub-section (6) that, during the pendency of the proceedings under this section no party can acquire the title or right of the property in custody without the consent of the court's receiver or the sanction of the Court[xxii]. Sub-section (7) of the section empowers the parties to include the legal representatives in the proceedings ongoing in case of death of a party, until the Civil court decides upon the matter [xxiii].

The evidentiary value of observations made in proceedings under s. 145 of CrPC, do not bind the competent Court in a legal proceeding but shows certain facts such as a) there was a dispute concerning to a property; b) that the dispute was between the parties; c) was led to the passing of a preliminary order under s.145 CrPC or under s. 146 of CrPC and d) that the Magistrate's findings determined the possession of the disputed property.

Prevention of breach of peace concerning immovable property is an important aspect of criminal justice in any nation. In order to maintain public order, a magistrate has been empowered with certain special powers under the Criminal Procedure Code (CrPC). These powers are related to the prevention of breach of peace concerning immovable property. The magistrate is empowered to take all necessary steps and measures to prevent any breach of peace concerning immovable property.

This includes the power to inspect, direct the removal of any material or thing which is likely to cause breach of peace and to impose restrictions on the entry and movement of people in the vicinity of the immovable property. Further, the magistrate has the power to issue orders for the demolition and reconstruction of the immovable property, if necessary.

In order to prevent any breach of peace concerning immovable property, the magistrate can also issue orders to the owner or occupier of the immovable property to take necessary precautions and to maintain peace in and around the immovable property.

  1. Khachrulal Bhagirath Aggrawal v. State of Maharashtra (2005) 9 SCC 36
  2. Law relating to Public Nuisance in India, Deepak Goyal, International Journal of Law Management & Humanities, Vol.2 Issue 1
  3. The Code of Criminal Procedure, 1973
  4. Indian Penal Code, 1860
  5. Ibid
  6. The Code of Criminal Procedure, 1973
  7. Administrative Training Institute, Law for the Executive Magistrates, West Bengal, April edn. 2007
  8. Mirza Mohd Aziz v. Safdar Husain, AIR 1962 All 68; Multani v. Shah Abdu, (1962) 2 Cr LJ 709
  9. Rewa Chand v. State of Madhya Pradesh, 1992 Cr LJ 278 (MP)
  10. 1992 Cr LJ 671 (P&H)
  11. Simultaneous Initiation of Criminal Case U/S 145 CrPC & Civil Proceedings Over Land Dispute 'Abuse of Process': Andhra Pradesh High Court, Jagriti Sanghi, Live Law, 29 Apr 2022
  12. RH Bhutani v. Mani Desai, (1968) 71 Bom LR 83: AIR 1968 SC 1444
  13. (1900) 24 Bom 527: 2 Bom LR 84
  14. Buddhi v. Gyana, 1996 Cr LJ 616 (Raj)
  15. Gobind Chandra Das, (1893) 20 Cal 520, 526
  16. Dunne v. Kumar Chandra Kisore, (1902) ILR 30 Cal 593
  17. Hurbullubh Narain Singh v. Luchmeswar Prosad Singh, (1898) ILR 26 Cal 188
  18. Janu Manjhi v. Maniruddin, (1904) 8 Cal WN 590
  19. Vijay Kumar v. Neeraj Kumar, 1990 Cr LJ 21 (J&K)
  20. Article 137 of Limitation Act, 1963
  21. Gobind Chunder Moitra v. Abdool Sayad, (1881) ILR 6 Cal 835
  22. Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471: (1984) 3 SCC 410
  23. Narayan Das Rai v. Bolta Ram, 1973 Cr LJ 818

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