Law: Criminal Procedure Code (V of 1898)

Section: 114, 145

Criminal Procedure Code (V of 1898), ---Ss. 144 do 145-Dispate as to possession of immovable property-Written statement, disclosing dispute as regards possession of land, filed in pros drawn up under S. 144-Magistrate confirming ex parte order without holding any inquiry-Order bad in law-Section 144 applies where possession not disputed-Question of actual possession, if disputed, can be decided by proceeding under S. 145, alone Practice of Magistrates drawing up proceedings under S. 144 instead of S. 145 in cases of breach of peace concerning possession of land-Deprecated. It appeared from the written statement filed by the Second Party that they claimed the disputed land to be in their possession and denied the claim of possession of the First Party therein. There was accordingly a dispute concerning possession of Jana and this could have been, decided by drawing up a proceeding under section 145 of the Criminal Procedure Code but instead of doing so the Magistrate made the order under section 144 of the Criminal, Procedure Code absolute. Section 144 of the Code applies only where the possession of a party, not in dispute but where a dispute exists concerning possession of the land the question of actual possession should be decided by taking evidence any a proceeding under section 145 of the Code. The failure of the Magistrate to draw up a proceeding under section 145 of the Criminal Procedure: Code, in the circumstances amounted to failure to exercise a jurisdiction vested under the law and consequently the order passed under section 744 of the Criminal Procedure Code could not be sustained in law. There is a general tendency on the part of the Magistrates to draw up proceedings under section 144 of the Criminal Procedure Code in cases of apprehension of breach of peace concerning possession of land instead of proceeding under section 145. This is obviously due to disinclination to hold enquiry into the question of possession which is contemplated by section 145. The adoption of the short cut method in drawing up a proceeding under section 144 of the Criminal Procedure Code in a case of land dispute cannot effectively meet the situation but it only prolongs…