Law: Criminal Procedure Code (V of 1898)

Section: 145

Criminal Procedure Code (V of 1898), S. 145-Dispute as to possession of immovable property-Opposite-party neither claiming title nor possession of disputed property-Magistrate, in circum stances, held, had no jurisdiction to proceed under S. 145(1) and to convert proceedings originally started under S. 144 to those under S. 145. The complainant party filed a petition against the opposite party stating that the erection of shops by the opposite-party on the bank of a tank adjacent to a mosque which was being used by the Musullies for ablution was causing apprehension of breach of peace. Proceedings under section 144 were drawn up by the Magistrate which were subsequently converted to those under section 145, Cr. P. C. Facts revealed that the opposite-party had purchased the disputed tank and the complainant party did not claim title to or possession over it: Held, in the absence of any dispute concerning the posses sion of the tank the Magistrate had no jurisdiction to pass the impugned order under subsection (1) of section 145, Cr. P. C. The order is clearly bad in law and must be set aside. Date of hearing : 15th December 1969.   JUDGMENT This Rule is directed against an order dated 1-7-68 passed by Mr. S. M. Israil Hoque, Sub-Divisional Magistrate, Bogra converting a proceeding under section 144, Cr. P. C. to one under section 145, Cr. P. C. The facts relevant to the present petition are that the opposite-party Abdur Rahman filed a petition before the Sub Divisional Magistrate on 2-5-68 alleging that a tank in Plot No. 1510 of mouza Sutrapur P. S. Bogra was attached to the Jame Mosque of Bogra and was being used by the Musullies for ablution and that the petitioner Sheikh Ensan Ali alias Haji Ensan Ali and others were trying to erect some shops on the bank of the tank causing apprehension of the breach of peace. The learned Sub-Divisional Magistrate thereupon drew up a proceeding under section 144. Cr. P. C. on 3-5-68 and issued notice upon second party petitioner. Subsequently on hearing both the parties the learned Magistrate converted the proceeding to one under section 145, Cr. P. C. The legality of this order is being challenged by the petitioner.…