Magistrate Not Justified In Exercising Power U/s.145 CrPC If There Is No Likelihood Of Breach Of Peace: Allahabad High Court

The applicant had approached the High Court challenging the validity of an order passed by the Additional City Magistrate in a case which was instituted on the basis of the applicant’s application under Section 145 CrPC.

The Single Bench of Justice Subhash Vidyarthi explained, “A bare perusal of Section 145 (1) Cr.P.C. makes it manifest that the first essential condition for invoking the powers under the aforesaid provision is the existence of a dispute concerning any land likely to cause a breach of peace. If there is no likelihood of causing a breach of peace, the Magistrate would not be justified in exercising the power under Section 145 Cr.P.C.”

Advocate Rakesh Kumar represented the Applicant, while Government Advocate represented the Opposite Party

Factual Background

The applicant claimed to be the owner of a portion of the property consisting of several houses under the occupation of different tenants. It was alleged that the husband of the second opposite party had forcibly taken possession of a store room by breaking the lock of the applicant. An FIR was lodged, and the criminal case instituted thereon has been pending. Pursuant to a police report, proceedings under Section 145 CrPC were instituted. The Tehsildar had submitted a report stating that the applicant was in possession of the disputed premises prior to his unlawful dispossession.

The Addl. City Magistrate passed an order directing the restoration of possession of the applicant, subject to any order passed by the competent civil court. However, this order was set aside by the Addl. District Judge in Revision. After remand, the Addl. City Magistrate dropped the proceedings under Section 145 CrPC on the ground that a civil suit regarding the same property was already pending adjudication. The applicant challenged the order by filing a Revision, which was allowed, and the matter was again remanded. The Magistrate once again dropped the proceedings under Section 145 Cr.P.C. on the ground that a civil suit regarding the property in dispute is pending.

Reasoning

The Bench noted that the police report was lodged approximately 9 days after the alleged incident of illegal dispossession. The case under Section 145 CrPC was instituted thereafter. Civil Suits had been filed by both parties, and during the intervening period of more than 23 years since the alleged illegal dispossession, there had not been any instance of breach of peace due to the alleged illegal dispossession of the applicant made in the year 2002.

Reference was made to the Apex Court’s judgment In Sri Siddeshwar Temple Trust Committee v. Sri Malingaraya Temple Charitable Trust: (2020) wherein it has been that once a civil suit is pending between the parties and an injunction has been granted therein, a parallel proceeding under Sections 145 and 146 CrPC cannot, in law, take place.

The Bench further stated, “In the present case, the Magistrate has come to the conclusion that there was no breach of peace, the matter related to title dispute which is pending adjudication before the Civil Court and the question of title can be decided by the Competent Court and has closed the proceedings for the aforesaid reasons. This Court finds no error or illegality in the view taken by the learned Magistrate.”

Thus, in light of such facts and circumstances, the Bench found no merit in the application filed under Section 482 CrPC and dismissed the same.

Cause Title: Syed Raza Abbas v. State Of U.P. (Neutral Citation: 2025:AHC-LKO:44537)

Appearance

Applicant: Advocates Rakesh Kumar, Agendra Sinha

Opposite Party: Government Advocate

Click here to read/download Order