Gauhati High CourtNowshad Ali vs Golam Mostafa Ahmed & Anr on 12 December, 2017Author:Hitesh Kumar SarmaBench:Hitesh Kumar SarmaCrl.Rev.P. 249/2016
                                      BEFORE
       HON'BLE mr. JUSTICE HITESH KUMAR SARMA
                                    :: O R D E R ::12.12.2017

       This is a criminal revision petition, filed underSections 397/401of the Cr.PC,
praying for setting aside the order, dated 13.5.2016, passed by the learned Sessions
Judge, Dhubri, in Criminal Revision No. 12/2016.I have perused the petition as well as the annexures furnished therewith.
       None appears for the revision petitioner on repeated calls.
       The respondents are represented by learned counsel Mr. S Rana.
       Therefore, I have heard learned counsel for the respondents and examined
the materials placed before this court by the petitioner along with the petition.The fact leading to the case is that, the present petitioners are the opposite
parties in a proceeding underSections 107/144/145of the Cr.PC before the learned
Additional District Magistrate, Hatsingimari, Dhubri, in Misc.Case No. 88/2015. In
this Misc.Case, the present respondents are the applicants.Learned counsel for the petitioner has submitted that in respect of land for
which the dispute arose between the parties is claimed to have been possessed by
the present petitioners since 20 years back after purchase of the land from its
original owner. This court is aware of the fact that under the proceedingSection 145of the Cr.PC, title of the land in dispute cannot be looked into which is the domain of
the Civil Court.   This court is to consider who was in possession 2 (two) months
prior to the dispute as regards the possession of the land in question. On the basis
of finding as to who was in the possession 2 (two) months prior to the dispute as
regards the possession, in possession of the land in favour of the party entitled to it
has to be declared.The instant proceeding before this court is not to declare the possession of
the disputed land as required underSection 145of the Cr.PC. The issue before this
court is the order, dated 30.12.2015, passed by the learned Executive Magistrate,
attaching the disputed land underSection 146(1)of the Cr.PC on the basis of
satisfaction recorded by him on a police report to that effect. Against this order,
dated 30.12.2015, the opposite party in the aforesaid Misc.Case, preferred the
revision petition before the Sessions Judge in Criminal Revision No. 12/2016. The
 learned Sessions Judge, vide his order, dated 13.5.2016, impugned herein this
petition, set aside the order dated 30.12.2015.It appears from the materials placed before this court that the learned
Executive Magistrate recorded his satisfaction on the basis of a police report about
likelihood of breach of peace in respect of possession of the disputed land, and
thereafter, he passed the order dated 30.12.2015 by which the disputed land was
attached.The fact remains that this case is pending since 2015 and final decision has
not been taken in the proceeding underSection 145of the Cr.PC, as the interim
order of attachment has been put to challenge before the learned Sessions Judge as
well as before this court. The learned Sessions Judge, in his judgment, referred to
above, has mentioned that there was no emergency for an order of attachment of
the disputed land and which the learned Executive Magistrate also did not mention
specifically in the order dated 30.12.2015.       The police report makes it clear that
there is apprehension of breach of peace between the parties and the learned
Magistrate was satisfied with that report, and thereafter, passed the order of
attachment. When there is a report to the effect that there is likelihood of breach of
peace in respect of possession of the suit land that itself is an emergency situation to
prevent the breach of peace. 'Emergency' not explained in the order is not a ground
for setting aside the order of the learned Executive Magistrate, dated 30.12.2015,
particularly in view of the fact that there is the police report to the effect that there is
likelihood of breach of peace regarding possession of the disputed land. That being
so, I do not find any illegality in the order passed by the learned Executive
Magistrate, dated 30.12.2015, and as such, interference by the learned Sessions
Judge in the aforesaid Criminal Revision Petition and setting aside the aforesaid order
dated 30.12.2015 appears to be not based on correct analysis of the law relevant in
the matter.Therefore, the order passed by the learned Sessions Judge is set aside and
the order, dated 30.12.2015, passed by the learned Executive Magistrate is restored
to file. However, it is ordered that the learned Executive Magistrate will dispose of
the aforesaid Misc.Case 88/2015 within 2 (two) months positively and a decision will
be taken as to who would be entitled to possession of the disputed land in the event
the right, title and interest of the parties are not taken to the Civil Court for
adjudication.It is made clear that if there is no civil suit pending in respect of right, title
and interest over the disputed land, the learned Executive Magistrate shall dispose of
the matter within 2 (two) months declaring the possession in favour of the parties,
who is found entitled therefor.The criminal revision petition stands disposed of accordingly.JUDGE
Basumatary