He should call upon the parties to submit their written statements in support of their claim to actual possession and on the basis of such statements decide as to who was in actual possession after hearing the parties and weighing the evidence. His decision on point of possession should be well reasoned and recorded in writing. In case of wrongful dispossession, the party so dispossessed is to be deemed as the party in possession.
In Mani Chora Das v. State of Jharkhand, the High Court of Jharkhand held that where there was a dispute in respect of property causing breach of peace, the proceedings initiated under Section 145, Cr.P.C. during pendency of the title suit were liable to be quashed.
It must be stated that the action taken under this section being purely preventive and provisional in nature, the order passed by Magistrate is not of a punitive character. It, therefore, follows that an application made to a Magistrate under Section 145 is not a complaint as it does not relate to an offence.
The Magistrate is empowered to initiate proceedings under this section upon a report of a police officer but such proceedings shall be only for a limited purpose for satisfying himself as to the likelihood of breach of peace and the identity of subject matter of dispute.
The Supreme Court in Jhumman Mai v. State of M.P., has observed that the order of Magistrate under Section 145 deals only with factum of possession. It is subject to the decision of civil Courts which can give a finding different from that which the Magistrate has reached. Likewise, the existence of a civil suit is no bar to the initiation of proceedings under Section 145 of the Code.
Where a suit involving the question of possession is pending in a civil Court and the Court has passed interim injunction restraining interference with the possession, any parallel criminal proceedings under Sections 145 and 146 would be barred under the law.
The Executive Magistrate before making a preliminary order under Section 145 must satisfy himself that the dispute relates to land or other objects mentioned in sub-section (1) and it is likely to cause a breach of peace.
The High Court of Madras in Thamaraiammal v. Executive Magistrate held that not passing of preliminary order under sub-section (1) of Section 145 of Cr. P.C., would vitiate the entire proceedings. Mere sending a notice was not by itself sufficient to comply with the mandatory requirements under Section 145 (1).
Sub-section (4) provides that the inquiry under Section 145 is limited only to the question of actual possession on the relevant date and is not concerned with the claims and titles of the parties as regards right to possession.
Where the Magistrate is satisfied that the cause of apprehension of breach of peace no longer persists or in fact it never existed, then in such cases he shall pass an order dropping the proceedings, and release of the property which was in dispute.
The decision of the Supreme Court in Ravi Raman Prasad v. State of Bihar, in the context of Section 145 Cr. P.C. describes special mention. In this case, the appellant was put in possession of the house with the help of police in execution of a decree of eviction. One of the respondents resisted this by filing a title suit.
The dispute led to a firing incident and in consequence, the S.D.M., exercising powers under Section 144 restrained both the parties from entering the house. He later put the appellants in possession of the house.
Thereupon, the respondents filed a petition under Section 145, Cr.P.C. which was dismissed. He then moved the High Court under Section 482 praying that the order be quashed. The High Court set aside the order of S.D.M. But in appeal, the Supreme Court put the appellants in possession which was in pursuance of the decree of eviction that they were given possession which has become final.
In Rajpati v. Bachclian the Apex Court ruled that once the reasons for holding a view that a breach of peace exists or is apprehended are stated in the preliminary order passed by the Magistrate under Section 145 (1), it is no longer necessary to set out the reasons again at the time of making a final order. The final order made under Section 145 must contain the points for determination and the decision thereon with reasons in writing as required under the Code of Criminal Procedure.
An order under Section 145 cannot be passed merely because there is a dispute between private parties, unless the Magistrate is satisfied that the private dispute may lead to disturbance of peace and public tranquillity, in the locality concerned.
In Prakash Chand Sachdev v. State, the father was dispossessed of his ancestral house by his own son. Therefore, he had to move the Court under Sections 107 and 145, Cr PC to get back possession of the house. He also filed a civil suit for injunction in a civil Court.
The Magistrate dropped the proceedings under Section 107 as there was obviously no apprehension of breach of peace and subsequently proceedings under Section 145 were also dropped because of the civil suit for injunction pending in the civil Court. In appeal, the High Court upheld the decision of the lower Court.
Thereupon, the father moved in appeal to the Supreme Court. The Apex Court set aside the orders passed by the Magistrate and the High Court and held that it is true that a civil suit normally bars the jurisdiction of the Criminal Courts but in the instant case there being no question of title involved since the parties were co-owners and there was no partition, the Magistrate under Section 145 Cr PC should have passed order for restoration of possession of the house to the father.
The Court further held that since Section 145 relates to disputes regarding possession concerning land etc.; dropping of proceedings under Section 107, Cr PC was no valid ground for dropping action under Section 145 of the Code. The Court, therefore, directed the father to be placed in possession of the house with the help of police, if necessary.
In essence , the main object of Section 145 is to “take the subject of dispute” (i.e., land etc.) out of the hands of the disputants, and put it in custody of one of them whose possession, the law will protect, until the final titles to possession is decided by the civil Court.
But mere existence of a dispute between private parties will not invoke jurisdiction under Section 145 unless the Magistrate is satisfied that such private dispute is also likely to cause disturbance of peace and public tranquillity.
The Magistrate’s satisfaction as regards likelihood of disturbance of peace should be based either upon the police report or from information gathered otherwise including the application by the disputant parties. Where the Magistrate failed to record in his preliminary order the reasons for his satisfaction, the proceedings are liable to be set aside.
The Supreme Court in Shakuntala Devi v. Chamru Mehto, held that no specified period of limitation has been prescribed for implementation of order made regarding declaration as to possession of land under Section 145 (4), therefore, it should be filed within a period of three years from the date of order as provided under Article 137 of the Limitation Act, 1963.