Bharat Prasad &
Ors. Vs. State of Bihar & Ors.  INSC 908 (6 May 2009)
In the supreme court
of india criminal appellate jurisdiction criminal appeal no. 952 of 2009 (@
special leave petition (criminal) no. 5981 of 2007) bharat prasad & ors.
.....appellant(s) - versus - the state of bihar & ors. ....respondent(s)
order of the high court dated 23.5.2007, passed under section 482 of the code
of criminal procedure is impugned before this court.
that order, the high court refused to quash the order dated 10.2.2005 passed by
3rd additional sessions judge, motihari in cr.revision no. 326 of 1992 whereby
the order dated 27.7.1992 passed by the executive magistrate, raxaul in case
no.548(m) of 1991 was confirmed.
the said order dated 27.7.1992, the executive magistrate declared possession in
favour of the opposite parties in a proceeding under section 145 of the code. The
relevant portion of the order is:- "i declare the possession of the first
side on the said land until and unless they are dispossessed by the competent
court and the opposite side is ordered that they shall not interfere in the
peaceful possession of the first side".
material facts of the case are as under:
land in question is 1 katha 8 dhura out of plot no. 1853 under khata no. 289 in
village gambharia kala, p.s. darpa, district motihari. the land originally
belonged to one ram lagan tiwari of village amnaur of district chapra.
case of the appellants is that one ram lagan tiwari mortgaged the said land to
one jagdish prasad singh son of tapasi rai of village bhopatpur bajhia, p.s.
keshariya, district east champaran on 21.7.1920 for a period of 60 years.
is further contended that some time on or about 9.11.1943, ram lagan tiwari
sold the land to one jamadar rai @ jamadar bhagat of village- lahadia, p.s.
darpa, district east champaran by a registered sale deed. neither jamadar rai @
jamadar bhagat nor ram lagan tiwari redeemed the mortgage and as a result
whereof jagdish prasad singh continued in the possession over the disputed
land. The said jagdish prasad singh, the mortgagee gave the said agricultural
land to the appellants and his brothers to cultivate as bataidars.
appellant contends that he along with jai bihar sah took possession of the said
and cultivated it as bataidar.
is further contended that on 18.8.1977, the said jagdish prasad singh tried to
dispossess the appellants and jai bihar sah from the batai land whereupon the
appellant no.2 - lakshman prasad filed sikmi batai case no. 480 of 1975 and jai
bihar sah filed sikmi batai case no.257 of 1976 before the l.r.d.c. both the
sikmi batai cases were decided against jagdish prasad singh and in favour of
concluding portion of the said order as follows:
4 " ....from
the statements of different persons and inquiry report it has become undisputed
that sri lakshman prasad sah, batayidaar along with his family members had been
cultivating this land for more than 30 years as batayidaar and distribute the
share of the crops to sri jagdish prasad sah the remaining 1 bigha of land but
till today 2 bighas and 2 katthas of land are in his peaceful possession and
legally sri lakshman prasad sah has got sikri right over the 2 bigha and 2
katthas of land which is equivalent to acre and decimel...".
the said order no appeal was preferred. the said order has become final.
is also the appellants' case that then lakshman prasad and his two brothers,
namely, ram chandra prasad and bharat prasad separated from each other and
partitioned the entire 5 land including the land in question among themselves.
is alleged that then on 26.6.1979, vendee of the original landlord ram lagan
tiwari, i.e. jamadar rai @ jamadar bhagat sold the entire land in favour of
dharaman prasad and his three sons, namely, shesh nath prasad, pramod kumar and
binay kumar by a registered sale deed on 26.6.1979.
is alleged that on 26.12.1981, laxman prasad executed one "ezabnama"
for sikmi batai in favour of dharaman prasad and his sons.
a proceeding under section 144 of the code was initiated and the sarpanch of
gamhari kala panchyat recommended initiation of such proceeding only on 2
bigha,2 katha land against the appellants out of total land of 3 bigha,22
the said proceeding was dropped by an order dated 9.1.1984 passed by the
learned sub-divisional magistrate in regard to some portion of the land and it
was directed that the proceeding will be continued only on 1 bigha, 8 katha
land and the proceeding under section 144 of the code was converted into
section 145 of the code.
the said proceeding, the appellants claim to have filed their show cause
stating the history starting from 1920.
on the basis of
police report, a separate proceeding under section 144 of cr.p.c was initiated
which was converted into a proceeding under section 145 of cr.p.c and in the
said proceeding the respondents herein filed criminal revision no.333 of 1984
before the patna high court and the hon'ble high court rejected the same.
appears that various proceedings under section 144 of cr.p.c were initiated
between the parties. ultimately appellants claim to have filed bataidari
(tenant) case no.10 of 1995-96, 11 of 1995-96 and 12 of 1995-96 before the
appropriate authority. all the cases were heard together and after hearing the
parties circle officer came to a finding that appellants are the tenant in
respect of the disputed land and directed them to deposit money for creating
zamabandi in their name and which they did. in support of this assertion, the
appellants were referring to two orders dated 13.06.1995 and 15.10.1995, issued
in bataidari case no.10 of 1995-96. in view of such proceeding, the respondents
herein filed criminal miscellaneous case for quashing those proceedings and
various criminal proceedings were initiated between the parties.
ultimately before the
court of third additional sessions judge (e.c.) motihari, the criminal revision
was filed by the appellants challenging the order dated 27.07.1992 passed by
executive magistrate and the said criminal revision was dismissed. challenging
that order, the petition under section 482 of cr.p.c was filed before the high
court. the order of the high court which was passed on that 482 petition has
been challenged before this court.
appears from the impugned order that the high court did not consider the effect
of the relevant provisions of bihar tenancy act (hereinafter referred "to
the said act") and the ambit of section 145 of the criminal procedure
code. it has been held in badri supp. (2) scc 347 that whether a person is
bataidar or not rests on a "pure factual investigation and the record of
the instant case clear finding has been arrived at that the appellants are
such a finding has
been arrived at under the provision of the said act which is a special law. the
provisions of section 48e of the said act provides for complete machinery for
enquiry into the rights of a bataidar and also provides for some protection.
section 49c also imposes some restriction on the transfer of such rights which
is created in favour of the tenants. So provisions of section 48e and those of
section 49c supplement each other.
legislative purpose in enacting the provisions of section 48e of the said act
is to ensure that the disputes between raiyats and under-raiyats are settled as
amicably as possible and for that, detailed machinery has been provided under
section 48e of the said act. in continuation of such legislative scheme section
48e (13) has provided as follows:
expressly provided in this act, no civil or criminal court shall have any
jurisdiction over the subject matter 10 of a dispute after a proceeding is
initiated under sub-section (1) by the collector:
provided that nothing
in this sub- section shall be deemed to affect the power of a criminal court to
take such action as may be necessary for preventing breach of the peace pending
the final disposal of the proceeding by the collector."
this context section 5 of the code of criminal procedure may also be noticed
and which provides as follows:
contained in the code shall, in the absence of a specific provision to the
contrary, affect any special or local law for the time being in force, or any
special jurisdiction or power conferred, or any special form of procedure
prescribed, by any other law for the time being in force."
cannot be doubted that said act is a special and local law in the sense it is
confined within the state of bihar. if we read the provisions of section 48e
(13) of said act as against section 5 of the said code, it will be clear that
the effect of section 5 of the code of criminal procedure is 11 to render the
provisions of the code of criminal procedure inapplicable in respect of all
matters covered by such special law. [see others - 1987 (3) scc 340 (para 7
construing section 5 of the code, the constitution bench of this court held in
1 scc 107]:
"if a special or
local law exists covering the same area, this latter law will be saved and will
13 of section 48e of the said act makes it clear that no civil or criminal
court shall have any jurisdiction over the subject matter of a dispute after a
proceeding is initiated under sub-section (1) of the collector.
the instant case, admittedly a proceeding under section 48e was initiated and
it terminated in favour of the appellants holdingtheir rights as bataidar. the
said adjudication has become final.
sub-section 48e (13) has a proviso to the effect that nothing in this
sub-section shall be deemed to affect the power of a criminal court to take
such action as may be necessary for preventing breach of the peace pending the
final disposal of the proceeding by the collector. as in this case the proceeding
under section 48e has been finally decided, this proviso cannot be pressed into
after the proceeding has become final and the rights of the appellants have
been declared, repeatedly provision of sections 144 and 145 of the cr.p.c have
been invoked to disturb the rights which the appellants have acquired in the
bataidari proceedings. but the main provisions of section 48 (13) have been
enacted to protect the bataidari rights of the parties and that is why it
provides for an exclusion of the power of the civil and criminal court over
such rights. this is keeping in tune with the principle of distributive
justice. similar provisions have been made in various land reforms laws of
different states. the courts while construing the provisions of such socio
economic legislation must interpret them in a manner which furthers its purpose
rather than frustrates it.
only argument of the respondents is that some of the appellants by ezabnama
gave away the rights in favour of the respondents. it may be noted that under
section 49c of the said act restrictions are imposed on transfer of rights by
under raiyat and if such a transfer is made, that is void. apart from insisting
on such transfer, which apparently is violation of the statute, no other
argument was made by the learned counsel for the respondents.
this case, proceeding of bataidari under section 48(1) (e) was over and there
was no pending proceeding. therefore, proviso of section 48e (13) is not
attracted. in view of the main provision in section 48(13) of the said act
jurisdiction of criminal court cannot be exercised in view of the express
ouster. another - (2006) 11 scc 66, a three-judge bench of this court has held
where rights of the parties have already been adjudicated upon by a different
forum, the parties must respect that finding. in such a situation proceeding
under section 145 is not to be initiated to disturb the finding. in that case
the high court in a proceeding under section 482 of cr.p.c refused to quash the
same thing has been done here. however, this court allowed appeal by setting
aside the high court's order as also directing that section 145 proceeding be
this case, this court is of the opinion that if the respondents are aggrieved
by the findings reached in the bataidari proceeding they have the statutory
right of the appeal to be exercised according to law. without doing that the
affect of bataidari proceeding cannot be scuttled with the subterfuge and
juggle of 144/145 proceedings. in the facts of this case, such a proceeding is
the reasons discussed above, we find that the high court has not approached the
legal issues involved in this case in their correct perspective nor considered
the affect of section 48e or sub-section (13) of the said act on a 145
we quash the high court's order and also the 145 proceeding. The appeal is
allowed. there shall be no order as to costs.
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