Dispute on immovable property causing breach of peace Section 145 Cr.P.C., 1973

[Sec. 164 of Bharatiya Nagarik Suraksha Sanhita, 2023]

Conflicts over immovable property, such as land, water, crops, and other products from the land, as well as the right to utilize such properties, sometimes result in violence or killing, which pushes people to commit crimes. Land conflicts must be resolved by the Civil Court since they are of a civil nature, i.e., between two parties over a civil problem such as ownership of the land, the title to the land, etc.

Sec. 145 of Criminal Procedure Code, 1973 (Cr.P.C.) protects the party's interests against a breach of peace, when one party uses force to obtain land or otherwise. In general, Sections 145 contains the legal regulations that deal with preventing crimes related to property disputes. When a Magistrate finds that there is a dispute between two parties over a certain piece of land, he would handle the circumstance under the provisions of Sec. 145 Cr.P.C.

Section 145 is self-contained, self-explanatory, and comprises ten subsections. The Magistrate who has been granted jurisdiction under this Section must limit his conduct to the provisions of this Section alone. Proceedings conducted in accordance with Section 145 are of a summary nature.

2.Provisions of Section 145

Sec. 145 states as follows:
145. 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 of 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 sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of this 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. x
   
   1. 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 therefrom 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.
       
   2. 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.
     

3. Breach of peace

Section 145 of the Code of Criminal Procedure contains provisions related to a breach of peace on account of a dispute over land or water. If there is a dispute between two parties/groups who own a piece of land, water, or a boundary, this will result in a breach of peace and the Executive Magistrate has the power to take action in this regard.

The following conditions must be met in order for a magistrate to have jurisdiction under Section 145:

• That there is a dispute.
• That it might result in a breach of peace.
• That the disputed property includes buildings, markets, fisheries, crops, or other agricultural products, as well as the land's boundaries, rentals, or profits.
• That the alleged possession occurred within two months of the Magistrate's first order, and
• That it falls within the Magistrate's jurisdiction.

For example: Two parties, 'A' and 'B,' are at odds over a plot of property. 'A' approaches 'B' with other men carrying deadly weapons and tells him that he will return on Monday and forcefully capture the land, firing a few bullets into the air. Being a short-tempered individual himself, "B" threatens "A" not to attempt to capture the land on Monday and fires a few rounds into the air as well.

In such a circumstance, the parties are extremely likely to engage in a deadly fight. Therefore, in such a circumstance, if the Executive Magistrate is informed by the police report or any other material that a breach of peace is likely to occur, he might order the parties to appear in court and present their written arguments to him.

4. Procedure to prevent breach of peace

Section 145 Cr.P.C. contains provisions related to the procedure which is being followed to prevent a breach of peace.

1. Procedure where dispute concerning land, etc is likely to cause breach of peace [Section 145(1)]
   A Magistrate of the First Class may take action if, after reviewing a police report or other information, he is convinced that there is a dispute over any immovable property, including buildings, markets, fisheries, crops, or other land products, and the rents or profits from such property, within the local limits of his jurisdiction that is likely to result in a breach of the peace.
   
   When a magistrate decides to take action in a dispute, he or she must issue a written order outlining the reasons why the parties must appear in court within a certain period and submit written statements of their respective claims regarding the fact that they actually possess the object of the dispute. There is no mention of any petition under Section 145(1). The "police report" or "other information" must satisfy the Magistrate.
   
   This "information" could be a request made by a party with an interest, a third party, or even the Magistrate's personal information. He may have received the information orally or in writing, or he might have witnessed a party acting in a way that indicated he should be concerned about a possible breach of the peace. Thus, it would seem that no formal application is required for the start of the proceedings. A party need not often present a case to the Magistrate.
   
   When the Magistrate, who is himself suspicious of a breach of the peace, makes certain inquiries and is ultimately satisfied that there is an apprehension of a breach of the peace and issues a written order stating the grounds of his being satisfied, the date of his order cannot be traced back to the first piece of information he discovered. This is because the starting point of an application or even a police report may not always be available.
    
2. Land or water [Section 145(2)]
   For the purposes of Section 145 of the Criminal Procedure Code, "land or water" refers to any immovable property, including houses, markets, fisheries, crops, and other agricultural products, as well as the rents and profits made by any such property.
    
3. Service of summons etc. [Section 145(3)]
   This order shall be served as a summons, and a copy thereof shall be published by affixing it to a visible location at or near the subject of dispute.
    
4. Inquiry as to possession [Section 145(4)]
   The Magistrate will then investigate possession in the following steps. Regardless of the case's merits, he must read the submitted statements, hear the parties, receive any evidence they may present, consider the impact of that evidence, obtain any additional evidence he deems necessary, and, if possible, determine which of the parties was in possession of the subject at the time the order was made. However, if it seems to the Magistrate that any party has been unlawfully and violently removed from possession during the two months prior to the date of such order, he may treat the person thus removed as if he had been in possession at such date. The Magistrate may attach the object of the dispute in an emergency while he makes a ruling.
    
5. If there exists no conflicts [Section 145(5)]
   The Magistrate shall cancel his first order and cease all future actions thereon if either party proves that there is or has never been a dispute as described above; but, prior to such cancellation, the Magistrate's initial order shall remain in effect. The provisions of Sub-Section (5) are clear. All parties are allowed to show that no conflict "exists or has existed" that may lead to a breach of the peace. The sub-Section expressly states that the Magistrate shall withdraw his ruling in this situation and that all future actions shall be delayed. It's possible that at this point before a judgement has been taken, the suspicion of a breach of the peace has disappeared, but the conflict itself is still in progress.
    
6. Possession shall be retained by the party in possession unless lawfully evicted [Section 145(6)]
   If the Magistrate determines that one of the parties was or should be considered to be in possession of the subject, he or she must issue an order stating that the party is entitled to possession of the subject until evicted from it in accordance with the law, or until the issue of title is resolved in a civil court. In addition, the Magistrate shall prevent any disturbances of such possession until such removal; however, if a party has been illegally and violently evicted within two months of the date of the first order, the Magistrate may return that party's possession.
    
7. In the event of the death of any party to the proceedings, the following legal heirs will be considered a party to the inquiry [Section 145(7)]
   If a party to one of these proceedings passes away, the Magistrate may make the legal representatives of the deceased party a party to the proceeding and will then continue the investigation if there is any doubt as to who the legal representative of the deceased party is for the purposes of the proceeding. All individuals claiming to be the representative of the deceased party shall be made parties thereto.
    
8. Disposal of crops or other property produce prone to rapid and natural decay [Section 145(8)]
   If the Magistrate believes that any crop or other product of the property that is in dispute is subject to rapid and natural decay, he may order its custody or sale and, after the investigation is complete, may make an appropriate order for the disposal of that property or the proceeds of its sale.
    
9. Summoning of witness [Section 145(9)]
   On request from any party, the Magistrate may, at any time during the proceedings under Section 145, issue a summons to any witness requiring him to appear or to produce any document or material.
    
10. Nothing in Section 107 limits the Magistrate's authority to proceed [Section 145(10)]
    Section 145 of the Criminal Procedure Code further states that nothing in the Section should be interpreted as limiting the magistrate's power to proceed under Section 107 of the Criminal Procedure Code. Section 107 of the Code of Criminal Procedure states that the magistrate may attach the object of the dispute until a competent court determines the rights of the parties thereto or the person entitled to possession thereof, if he determines that none of the parties was then in such possession or if he is unable to determine which of them was then in such possession.
     

5. Powers of Magistrate

A Magistrate has the following powers under Sec. 145 Cr.P.C. in this regard:
The Magistrates have the authority to:

• Attach the subject of the dispute and appoint a receiver or order that a certain status quo be preserved, generally in favor of the person in possession of the property on the day of judgment.

The Executive Magistrate has the power to:

• Make an order requiring the parties to attend the court in person and to put in written statements of their respective claims.
• Order an investigation.
• Call upon the production of Documents.
• Issue a summon to any witness to attend the court or produce any documents.
• Make an order as he thinks fit.

6. Case laws related to Section 145 Cr.P.C.

1. Debi Prasad Vs. Sheodat Rai, (1908) ILR 30:

Section 145 is solely meant to provide a fast remedy for preventing a breach of peace arising from disputes over immovable property by keeping one or both parties in possession. Section 145 proceedings are quasi-judicial and quasi-administrative in character, with the goal of preventing a breach of peace and preserving tranquillity.
 
2. Bhinka Vs. Charan Singh, AIR 1959 SC 960:

The orders that a magistrate issues in accordance with Section 145 of the Code of Criminal Procedure, 1973 are referred to as "police orders." A provisional police order based on prior possession is all that the Magistrate's order under this Section is. It is formed solely to prevent a breach of the peace, and because it is made regardless of the rights of the parties, it cannot allow the person in whose favour it is issued to defend an action on the property. 
3. R. H. Bhutani Vs. Miss Mani J. Desai & Ors., AIR 1968 SC 1444:
   Under Sec. 145 Cr.P.C., the Magistrate must be convinced that there is a conflict over an immovable property and that this dispute is likely to result in a breach of peace before starting any legal proceedings. However, the provision requires him to grant a preliminary order under subsection (1) after he is satisfied with these two requirements, and then to make an inquiry under sub-section (4) and pass a final decision under sub-section (1).
   
   It is not essential for the suspicion of a breach of peace to be present or continue at the time the final order is given. Regardless of the parties' rights, the inquiry under Section 145 is only allowed to focus on the issue of who was in actual possession on the day of the preliminary order. The High Court refused to address the issue of whether the evidence presented to the magistrate was sufficient while exercising its revisional jurisdiction.
    
4. Mathuralal Vs. Bhanwar Lal, AIR 1980 SC 242:
   While considering Section 145 of the Criminal Procedure Code, the Supreme Court stated, "Quite obviously, Sections 145 and 146 of the Criminal Procedure Code together comprise a scheme for the settlement of a situation where there is a danger of a breach of the peace due to a dispute about any land or water or their limits." It is wrong to hold that the Magistrate's Jurisdiction ends as soon as an attachment is made on the ground of emergency.
   
   Section 146 can be interpreted to mean that after an attachment has been made in any of the three circumstances listed there, the dispute can only be settled by a competent court and not by the Magistrate who made the attachment if it is taken out of its context and read independently of Section 145.
   
   However, Section 146 and Section 145 cannot be thus separated. It must only be interpreted in light of Section 145. Without a doubt, contextual construction will win out against isolationist construction. If not, it could be misleading. That is one of the fundamental elements of construction.
    
5. Rajpati Vs. Bachan and Ors., AIR 1981 SC 18:
   As a result, it is obvious that a finding of the presence of a breach of the peace is not essential at the time a final order is given. Furthermore, there is no provision in the Code of Criminal Procedure that mandates a finding of the existence of a breach of the peace in the final order.
   
   It is not necessary for the breach of peace to continue at every stage of the proceeding once a preliminary order issued by the Magistrate outlines the grounds for holding that one exists, unless there is convincing evidence illustrating that the dispute has ended in order to bring the case within the purview of subsection (5) of Section 145 of the Code of Criminal Procedure. Unless a situation like this occurs, the procedures must proceed to their natural conclusion, which is the final ruling under Section 145, subsection (6).

 
6. R. H. Bhutani Vs. Miss Mani J. Desai & Ors., AIR 1968 SC 1444:
   Under Sec. 145 Cr.P.C., the Magistrate must be convinced that there is a conflict over an immovable property and that this dispute is likely to result in a breach of peace before starting any legal proceedings. However, the provision requires him to grant a preliminary order under subsection (1) after he is satisfied with these two requirements, and then to make an inquiry under sub-section (4) and pass a final decision under sub-section (1).
   
   It is not essential for the suspicion of a breach of peace to be present or continue at the time the final order is given. Regardless of the parties' rights, the inquiry under Section 145 is only allowed to focus on the issue of who was in actual possession on the day of the preliminary order. The High Court refused to address the issue of whether the evidence presented to the magistrate was sufficient while exercising its revisional jurisdiction.
    
7. Mathuralal Vs. Bhanwar Lal, AIR 1980 SC 242:
   While considering Section 145 of the Criminal Procedure Code, the Supreme Court stated, "Quite obviously, Sections 145 and 146 of the Criminal Procedure Code together comprise a scheme for the settlement of a situation where there is a danger of a breach of the peace due to a dispute about any land or water or their limits." It is wrong to hold that the Magistrate's Jurisdiction ends as soon as an attachment is made on the ground of emergency.
   
   Section 146 can be interpreted to mean that after an attachment has been made in any of the three circumstances listed there, the dispute can only be settled by a competent court and not by the Magistrate who made the attachment if it is taken out of its context and read independently of Section 145.
   
   However, Section 146 and Section 145 cannot be thus separated. It must only be interpreted in light of Section 145. Without a doubt, contextual construction will win out against isolationist construction. If not, it could be misleading. That is one of the fundamental elements of construction.
    
8. Rajpati Vs. Bachan and Ors., AIR 1981 SC 18:
   As a result, it is obvious that a finding of the presence of a breach of the peace is not essential at the time a final order is given. Furthermore, there is no provision in the Code of Criminal Procedure that mandates a finding of the existence of a breach of the peace in the final order.
   
   It is not necessary for the breach of peace to continue at every stage of the proceeding once a preliminary order issued by the Magistrate outlines the grounds for holding that one exists, unless there is convincing evidence illustrating that the dispute has ended in order to bring the case within the purview of subsection (5) of Section 145 of the Code of Criminal Procedure. Unless a situation like this occurs, the procedures must proceed to their natural conclusion, which is the final ruling under Section 145, subsection (6).
    
9. Prakash Chand Sachdeva Vs. State, (1994) 1 SCC 471:
   The Executive Magistrate is asked to decide the fact of real possession, not which party has a right to possess, in the proceedings under Section 145 of the Code of Criminal Procedure, 1973. A person is often prevented from asserting the criminal court's jurisdiction if they have filed a suit or other remedy in civil court for possession and an injunction based on the title. However, if there is no question as to the title, this normal rule does not apply.
   
   When a claim or title is undisputed, the parties are co-owners on their own evidence, and there is no partition, one cannot be allowed to act violently illegally and demand that the other follow the law. The Magistrate is authorised to take cognizance under Section 145 of the Code of Criminal Procedure, 1973, if the dispute is not over the right to possession but rather over the question of possession.
    
10. Mahant Ram Saran Dass Vs. Harish Mohan and Anr., (2001) 10 SCC 758:
    The main question that has been answered by the Supreme Court is whether the respondent had the right to use the Magistrate's jurisdiction under Section 145 CrPC under the facts and circumstances of the current case, where a civil suit for a declaration was already pending before the appropriate court, the civil court, and the Magistrate had the right to start the proceedings and issue any interim orders appointing a receiver therein.
    
    It is undeniable that the court issued an interim injunction during the civil case itself and placed limitations on the parties' ability to sell the subject property. It's true that the applicant before the Magistrate hasn't been named as a party-defendant in the civil suit, but that won't change the situation in any way since, in our opinion, the civil court is in possession of the matter, it has the authority to grant any necessary relief, and the Magistrate lacks the authority to do so in the particular case at hand.
    
    In light of the situation, the High Court's impugned ruling as well as the proceedings started before the Magistrate in accordance with Section 145 Cr.P.C. are quashed. It goes without saying that the current situation must be preserved so that the parties can request the necessary orders from the civil court.
     
11. Kuldip Singh Vs. State of Haryana, decided on 19-11-2019:
    The Punjab and Haryana High Court gave a significant judgement that will change the way provisions of the Code of Criminal Procedure are used to interfere with a party's control over land in the event of a dispute. Proceeding under Section 145 cannot be used as a tool to obtain possession of the land on the basis of title. "The parties should have been moved to the civil court where a lawsuit is already proceeding, according to the executive Magistrate. A tool to obtain control of the land on the basis of title cannot be used in the procedures under Section 145 of the Code" Justice Kshetarpal added.
     
12. Mohd Shakir Vs. State of Uttar Pradesh, order dated 26-08-2022:
    In this case, the Magistrate made observations and gave instructions regarding the rights of possession that one party possessed, and then urged the other party to refrain from interfering with the property under consideration. An issue was raised that whether the Magistrate's Court can make findings, observations, and interim orders while the Section 145 CrPC case is still pending in the civil courts. Supreme Court stated that when all legal proceedings on a subject are dropped due to continuing proceedings on the same matter in civil courts, the Magistrate cannot make any further remarks or draw any conclusion based on the findings obtained.
     
13. Jitendra Kumar Vs. Anil Kumar and Anr., Cri. Rev. No. 431 of 2000, dated 31/03/2022
    Where a civil suit for possession or declaration of the title in respect of the same property is pending, the proceedings under Section 145 CrPC are liable to be discontinued.
    
    The parties before the Magistrate under Section 145 Cr.P.C. are not in a position of plaintiff or defendant; there is no first party or the second party; they do not have any right upon the adjudication of the dispute; the proceedings under Section 145 Cr.P.C. starts with the subjective satisfaction of the Magistrate; accordingly no party has right to give an application for withdrawal of proceedings; likewise the Magistrate exercising jurisdiction under Section 145 Cr.P.C. cannot withdraw the proceedings upon the application given by a party to it rather it can do so only after his subjective satisfaction, and the parties have no independent right.
     
14. Mohd. Abid Vs. Ravi Naresh, order dated 01-11-2022:
    Once the Civil Court is seized of the matter, the proceedings under Section 145/146 Cr.P.C. cannot proceed and must come to an end. The interse rights of the parties regarding title or possession are eventually to be determined by the Civil Court. The interse rights of the parties regarding title or possession are eventually to be determined by the Civil Court.
     

Conclusion
Section 145 Cr.P.C. is implemented in real life when there is a dispute over an immovable property and the dispute is such that it may likely cause a breach of peace. Then, in order to prevent the disturbance and breach of peace, this power is given to the magistrate to resolve the issue of the right of possession. In order to prevent breach of peace and if there is a need to take immediate action, this power is given to the Magistrate.

Its purpose is to determine who was in possession of the property either on the day a breach was likely to occur or, in cases where one party has been illegally and violently removed from the property, within two months of that date. Since the Magistrate is solely interested in the issue of real possession, he must resolve the issue of the right to possession.