AMINULLAH and others versus Syed Haji MUHAMMAD AYUB and others ---
Civil Petition No. 116 of 2020
2024 SC MR 136
Proceedings under section 145 , Cr.P.C --- Object and purpose of such proceedings stated . The main object and purpose of the powers vested under section 145 of the Cr.P.C. is to prevent a likely breach of the peace and to maintain the status quo . The parties are provided an opportunity to resolve the dispute regarding the title or right of possession before a competent forum . The most crucial factor for undertaking the proceedings is the likelihood of breach of the peace because of the dispute . The dispute must be in respect of land or water or boundaries thereof and the subject matter must be situated within the limits of the territorial jurisdiction of the Magistrate who has to exercise the powers . The existence of these factors is a prerequisite for making a preliminary order under subsection ( 1 ) of section 145 of the Cr.P.C. and the grounds required to be stated in the order must justify the satisfaction of the Magistrate . The mere existence of a dispute is not sufficient to put the powers in motion . There must be sufficient material giving rise to an imminent danger or a breach of the peace . In the absence of such an apprehension of a breach of the peace the exercise of the power would not be lawful . Moreover , the exercise of powers under section 145 will not be justified if the factor of breach of the peace can be prevented by resorting to powers vested under section 107 of the Cr.P.C. While conducting an inquiry under section 145 of the Cr.P.C. the Magistrate does not have the power or jurisdiction to decide either the question of title of property or the lawfulness of the possession . It merely empowers the Magistrate to regulate the possession of the property in dispute temporality in order to avert an apprehension of breach of the peace . The attachment of the property under the second proviso of section 145 ( 4 ) is subject to the satisfaction of the Magistrate that a case of emergency has been made out . The Magistrate , while exercising powers under section 145 of the Cr.P.C , is merely required to declare which one of the parties is entitled to remain in possession because the proceedings do not empower undertaking an inquiry relating to ownership or the right to possess .
Proceedings under section 145 , Cr.P.C --- Judicial Magistrate , jurisdiction of --- Section 145 of the Cr.P.C was amended through the Code of Criminal Procedure ( Balochistan Amendment ) Act , 2010 with effect from 10.12.2010 and the expression " District Magistrate or Sub - Divisional Magistrate or an Executive Magistrate specially empowered by the Provincial Government in this behalf " was inserted by substituting the omitted expression --- Judicial Magistrate in the present case was , therefore , bereft of jurisdiction to entertain the complaint and to exercise the powers under section 145 of the Cr.P.C. --- Notwithstanding the lack of jurisdiction , the Judicial Magistrate also did not appreciate that the jurisdictional requirements were not in existence --- Respondent , according to his own stance , was not in possession , rather it was handed over to the last tenant --- Dispute was not likely to cause a breach of the peace and the respondent , in his complaint , had vaguely made a reference to it without disclosing any justification relating thereto --- Protracted proceedings also established that the vague assertion of breach of the peace was merely an attempt to meet the requirement expressly provided under section 145 of the Cr.P.C .-- Judicial Magistrate , despite having no jurisdiction to exercise the powers , had virtually adjudicated the title of the property and the right relating to possession in favour of the respondent --- Powers exercised in the facts and circumstances of the case in han were without lawful authority and jurisdiction --- Petition was converted into an appeal and allowed and the impugned judgment of the High Court was set - aside .
Criminal Procedure Code- S . 145 ---
Dispute concerning land likely to cause breach of peace --- Proceedings under section 145 , Cr.P.C --- Nature --- Nature of proceedings under section 145 of the Cr.P.C. are more in the nature of an executive function because the right of ownership nor that of possession is adjudicated --- Exercise of the powers are subject to fulfilment of the jurisdictional pre - conditions , particularly the satisfaction of the Magistrate that the dispute is likely to cause a breach of the peace .
AMINULLAH and others versus Syed Haji MUHAMMAD AYUB and others ---
Civil Petition No. 116 of 2020
2024 SC MR 136
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