Admitted Possession Bars Section 145 CrPC Proceedings, Gauhati High Court Holds

The Gauhati High Court quashed Section 145/146 CrPC proceedings where the complainant's own petition before the Magistrate conceded that the petitioner was in possession of the disputed land, making the vital jurisdictional condition for invoking Section 145 absent.

The Gauhati High Court, in a judgment pronounced on 26 June 2026, quashed proceedings initiated by the Additional District Magistrate, Hailakandi under Sections 145 and 146(1) of the Code of Criminal Procedure, 1973 on the ground that the jurisdictional precondition for invoking those provisions was absent. Justice Sanjeev Kumar Sharma, sitting singly, held that where the complainant's own pleadings before the Magistrate treated the opposite party as a person in possession of the disputed land, there was no genuine dispute as to possession that could justify drawing up proceedings under Section 145 CrPC. The attachment order dated 27 April 2022 was accordingly set aside as without jurisdiction, and the continuance of the proceedings was found to amount to an abuse of the process of law.

The Dispute Before the High Court

The petitioner, Zahirul Haque Laskar of village Nitainagar Part-II, Police Station and District Hailakandi, Assam, approached the High Court under Section 482 CrPC seeking to quash the order dated 27 April 2022 passed by the Additional District Magistrate, Hailakandi in Case No. 148/2021 under Sections 145 and 146(1) CrPC, and the entire proceeding in that case.

The dispute arose from a parcel of land in Hailakandi over which respondent No. 2, Chandu Miya Laksar, claimed ownership by inheritance. According to the complaint filed by respondent No. 2 before the Additional District Magistrate on 2 April 2022, the petitioner and his brothers had entered into an oral tenancy arrangement, initially paying monthly rent of Rs. 800 for shop premises and Rs. 2,000 for a godown. After a few months, the petitioner and his brothers stopped paying rent. When respondent No. 2 attempted to earth-fill the western part of the suit land on 28 March 2022 for extension of shop houses and a godown, the petitioner and his brothers raised objections and attempted to dispossess the complainant. Local intervention prevented that attempt, but respondent No. 2 contended that there was every possibility of a breach of public peace in the locality.

The complaint was registered as Case No. 148M/2021 under Sections 144, 145, and 146 CrPC. The Additional District Magistrate called for a police report. A non-FIR case vide No. 49/2022 of Hailakandi Police Station was registered under Section 144 CrPC, and ASI Gautam Nath of Hailakandi Police Station submitted a report on 23 April 2022 noting a land dispute between the parties and describing both parties as “very desperate and danger in nature.” Respondent No. 2 thereafter filed an application under Section 146 CrPC on 26 April 2022 for attachment of the suit land, and the Magistrate passed the attachment order the following day, 27 April 2022, on the basis of the police report.

Procedural History Leading to the High Court

The petitioner filed an application on 24 May 2022 to vacate the ex-parte attachment order. The Magistrate did not dispose of that application and instead directed the Circle Officer to enquire into the status of the scheduled land, fixing the matter for 2 July 2022.

During the pendency of proceedings before the Magistrate, respondent No. 2 filed Title Suit No. 69/2022 on 2 June 2022 before the Court of Munsiff (1), Hailakandi, seeking a declaration of right, title, and interest over the suit land, recovery of khas possession, demolition of the petitioner's construction, and a decree for rent. That civil suit was subsequently withdrawn on 10 March 2023.

Aggrieved by the orders dated 27 April 2022 and 29 May 2022, the petitioner filed Criminal Revision No. 42/2022 before the Sessions Judge, Hailakandi. The Sessions Judge set aside the attachment order and remanded the matter to the Trial Court vide judgment dated 20 July 2022. Respondent No. 2 challenged that Sessions Court judgment before the High Court in Criminal Revision Petition No. 493/2022. This Court stayed the Sessions Court's judgment dated 20 July 2022 by order dated 30 September 2022, and the stay was subsequently extended. The present petition under Section 482 CrPC arose against the original proceedings before the Additional District Magistrate.

The Legal Issue

The core question was whether an Executive Magistrate has jurisdiction to initiate proceedings under Section 145 CrPC and attach land under Section 146(1) CrPC when the very pleadings of the party invoking those provisions disclose that the party sought to be proceeded against is already in possession of the disputed land.

Section 145(1) CrPC requires that the Executive Magistrate be satisfied, from a police report or other information, that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof. The Magistrate must then require the parties to file written statements on the fact of actual possession. Section 145(4) CrPC requires the Magistrate to determine, if possible, which party was in possession of the disputed land on the date of the order under Section 145(1), without reference to the merits of any party's right to possess.

The petitioner's counsel, Mr. M.J. Quadir, submitted that respondent No. 2's own petition before the Additional District Magistrate made it plain that the petitioner was in possession of the land as a tenant — he had been paying rent and was residing in the dwelling house on the disputed land. On that footing, there was no dispute as to possession warranting the Magistrate's jurisdiction. It was further argued that respondent No. 2's petition contained no averment that the petitioner had threatened dire consequences or created serious apprehension of breach of peace, and the police report was therefore an insufficient basis for attachment.

Respondent No. 2 resisted, arguing through counsel Ms. B. Devi that the petitioner's conduct had caused a genuine apprehension of breach of peace and that the Magistrate had rightly exercised power under Sections 145 and 146 CrPC.

How the Court Reasoned

Justice Sanjeev Kumar Sharma accepted the petitioner's argument. The court's reasoning proceeded from the text and purpose of Section 145 CrPC. The section is designed to enable the Executive Magistrate to determine who was in actual possession of disputed land when that question is genuinely contested. The mechanism ceases to operate where the fact of possession is not in dispute.

Reading respondent No. 2's own complaint, the court found it an admitted position that the petitioner was in possession of the land. The complaint itself described the petitioner as someone who had entered into an oral tenancy, paid rent, and occupied the premises. On that reading, the fundamental condition precedent for invoking Section 145 — a dispute as to actual possession — was absent.

The court stated that a Magistrate drawing proceedings under Section 145 CrPC must determine possession as it stood on the date of the order under Section 145(1). Conversely, the Magistrate cannot validly draw such proceedings if the materials clearly indicate that the person sought to be evicted by invoking Section 145 had been in possession of the disputed land for a period longer than two months before the date of the police report or before the information enabling the Magistrate to draw the proceeding was given.

On the attachment under Section 146(1), the court's reasoning followed directly from the Section 145 analysis: since the jurisdictional precondition for Section 145 proceedings was missing, the consequential attachment of the suit land — which included the petitioner's dwelling house — was equally without jurisdiction. The court also held that allowing the proceedings to continue would amount to an abuse of the process of law.

Outcome

Justice Sanjeev Kumar Sharma allowed Criminal Petition No. 1292/2023. The proceedings in Case No. 148 of 2021 under Sections 144, 145, and 146 CrPC pending before the Additional District Magistrate, Hailakandi, were quashed in their entirety. The impugned order of attachment dated 27 April 2022 stands set aside as part of the quashed proceedings.