GURU HEMBROM vs THE STATE OF JHARKHAND
- Court
- Jharkhand High Court
2026:JHHC:31912
[ ]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2030 of 2026
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Guru Hembrom, aged about 60 years, Son of Late Barka
Hembrom, resident of Village- Gaibathan, Post- Patharghatta,
P.S.- Maheshpur, District- Pakur (Jharkhand).
… Petitioner
Versus
1. The State of Jharkhand.
2. Amin Hembrom, son of Late Mandal Hembrom
3. Rajan Hembrom,
4. Babuji Hembrom,
5. Devilal @ Dinesh Hembrom, no.3 to 5 are sons of Amin
Hembrom; No. 2 to 5 residents of Village Gaibathan, Post-
Patharghatta, P.S.- Maheshpur, District- Pakur (Jharkhand).
…
Opposite Parties
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For the Petitioner : Mr. Rajeeva Sharma, Sr. Advocate.
Mr. Ritesh Kumar, Advocate.
Mr. Om Prakash, Advocate.
Ms. Maksuda Khatun, Advocate
For the State : Mr. Sunil Kr. Dubey, Addl.P.P.
For the O.P. No.2 to 5: Mr. Gautam Kumar, Advocate.
Mr. Manoj Kumar, Advocate.
Mr. Ashutosh Kr. Sinha, Advocate.
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P R E S E N T
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:-
I.A. No.14843 of 2026
Heard the parties.
Learned counsel for the petitioner submits that this interlocutory
application has been filed for early hearing of this Criminal
Miscellaneous Petition.
Since the matter is taken up today, hence, this interlocutory
application is disposed of being infructuous.
(Anil Kumar Choudhary, J )
.
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Cr.M.P. No.2030 of 2026
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 528 of the B.N.S.S., 2023 with
the prayer to quash the order dated 25.03.2026 passed by learned
Additional Sessions Judge-I, Pakur in Cr. Revision No. 79 of 2025
whereby and whereunder the learned Additional Sessions Judge-I,
Pakur has set aside the order dated 12.09.2025 passed by the learned
Sub-Divisional Magistrate, Pakur in Cr. Misc. Case No. 422 of 2025
whereby the learned Sub-Divisional Magistrate, Pakur converted the
proceeding under Section 163 of the B.N.S.S., 2023 to a proceeding
under Section 164 of the B.N.S.S, 2023 which corresponds to Section
145 of the Cr.P.C. on the ground that the said order was passed
without hearing the parties.
3. It is submitted by the learned senior counsel for the petitioner that
the conversion of a proceeding under Section 163 of the B.N.S.S., 2023 at
the most gives rise to fresh proceeding under Section 164 of the B.N.S.S.
2023 and since for initiating a proceeding under Section 164 of the
B.N.S.S. 2023 itself no prior notice to the other of the parties is required
so no illegality has been committed by the learned Sub-Divisional
Magistrate, Pakur in converting the proceeding under Section 163 of the
B.N.S.S., 2023 to Section 164 of the B.N.S.S., 2023 as the sine qua non of
such proceeding, is the apprehension of breach of peace and the same
has been recorded by the Sub-Divisional Magistrate, Pakur based upon
the documents and the show-cause filed by the parties. It is next
submitted by the learned senior counsel for the petitioner that after the
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proceeding under Section 163 of the B.N.S.S., 2023 got converted into
proceeding under Section 164 of the B.N.S.S., 2023, the requirement of
Section 164 of the B.N.S.S. 2023 i.e. giving opportunity to the parties to
produce evidence is to be given by the learned Sub-Divisional
Magistrate, Pakur or the successor Court to which it has been
transferred before a final order under Section 164 of the B.N.S.S. 2023 is
passed. Hence, it is submitted that the learned Additional Sessions
Judge-I, Pakur has committed a grave illegality by setting aside the
order dated 12.09.2025 passed by the learned Sub-Divisional
Magistrate, Pakur in Cr.Misc. No. 422 of 2025. It is lastly submitted that
the prayer as made in this criminal miscellaneous petition be allowed.
4. Learned Additional Public Prosecutor as well as learned counsel
for the opposite party no.2 to 5 has vehemently opposes the prayer and
submit by relying upon the judgment of Hon’ble Patna High Court in
the Case of Ajit Kumar V. State of Bihar passed in Cr. Misc. No. 34575
of 2012 dated 09.03.2015 that as in that case, in the absence of
apprehension of breach of peace on account of the bona fide land
dispute, the Magistrate converted the proceeding under Section 144 of
Cr.P.C. to Section 145 of the Cr.P.C.; it was held by the Hon’ble Patna
High Court that the same is abuse of process of law. It is next submitted
that before conversion of the proceedings under Section 163 of the
B.N.S.S., 2023 to a proceeding under Section 164 of the B.N.S.S., 2023,
the Sub-Divisional Magistrate, Pakur ought to have given a full-fledged
opportunity of being heard to the parties and having not done so, the
learned Additional Sessions Judge, I, Pakur has rightly set aside the
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same. Hence, it is submitted that this Cr.M.P. being without any merit
be dismissed.
5. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here that
the Hon’ble Division Bench of Odisha High Court had the occasion to
consider the conversion of the proceeding under Section 144 of the
Cr.P.C. to 145(1) of the Cr.P.C. in the case of Padma Charan Behera &
Others vs. Prafulla Chandra Naik & Others in its judgment dated
20.12.1974 reported in 1974 O Supreme (Ori) 104 and also in 1975 CrLJ
1190 summed up as under:-
“(i) The Magistrate gets jurisdiction to initiate proceeding under
Section 145, Criminal Procedure Code on his having satisfaction
that there is apprehension of breach of peace relating to immovable
property. The jurisdiction to initiate the proceeding does not depend
on the manner in which he drew up the initial order.
(ii) Failure to draw up a formal preliminary order under Section
145(1) is a mere irregularity and does not affect the question of
Jurisdiction. Such a proceeding is not liable to be quashed unless
prejudice is shown and unless such an objection is taken at the
earliest opportunity as proscribed in Section 537, Criminal
Procedure Code.
(iii) If the initial order is not challenged as being without
jurisdiction and the party files written statement enters into
evidence and awaits till the off chance of getting a favourable
judgement, he cannot be allowed to assail the final order.
(iv) Where a Magistrate initiates a proceeding under Section 144,
Criminal Procedure Code in respect of immovable property while
he ought to have initiated a proceeding under Section 145 the
party would not be allowed to suffer and the date of initiation of
the proceeding under Section 144, Criminal Procedure Code shall
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be treated as the date of the preliminary order under Section
145(1).”
this Court is in agreement with the conclusions arrived at by the
Hon’ble Division Bench of Odisha High Court in respect of answers of
the questions formulated.
6. It is crystal clear that when a Magistrate initiates a proceeding
under Section 144 of the Cr.P.C. in respect of immovable properties
while he ought to have initiated a proceeding under Section 145(1) of
the Cr.P.C., the party would not be allowed to suffer and the date of
initiation of proceeding under Section 144 of the Cr.P.C. shall be treated
as the date of preliminary order under Section 145(1) of the Cr.P.C.;
When a proceeding under Section 144 of the Cr.P.C. gets converted to a
proceeding under Section 145 of the Cr.P.C.
7. It is the settled principle of law that as evident from verbatim
Section 164 of the B.N.S.S., 2023 that the Executive Magistrate need not
hear the parties before initiating a proceeding under Section 164 of the
B.N.S.S. 2023 and the sine qua non for initiating a proceeding under
Section 164 of the B.N.S.S. 2023 is the existence of apprehension of
breach of peace relating to a land dispute. So far as the contention of the
opposite party no.2 to 5 that the parties must have been heard before
converting the proceeding under Section 163 of the B.N.S.S., 2023 to
proceeding under Section 164 of the B.N.S.S., 2023 is concerned; the
th
facts of the case reveal that on the 59 day of the initiation of the
proceeding under Section 163 of the B.N.S.S. 2023, it appeared to the
learned S.D.M., Pakur that it is not possible to conclude the proceeding
under Section 163 B.N.S.S. 2023 within maximum period stipulated for
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such proceeding, being two months but the apprehension of breach of
peace was subsisting in connection with land dispute between the
parties. So under such circumstances as he has converted the
proceeding under Section 163 of the B.N.S.S. 2023 to the proceeding
under Section 164 of the B.N.S.S., 2023, in the considered opinion of this
Court, hearing the parties before passing such order is not essential, but
after conversion of the proceeding under Section 164(1) of the B.N.S.S.
2023, the learned Executive Magistrate concerned has to follow all the
procedures of the proceeding under Section 164 of the B.N.S.S. 2023 as
if a new proceeding has been initiated by giving opportunity to the
parties to put in written statements of their respective claims in respect
of the fact of actual possession of the subject of dispute and other
provisions of Section 164 of the B.N.S.S., 2023.
8. Under such circumstances, since the order dated 12.09.2025 passed
in Cr. Misc. Case No. 422 of 2025 by the learned S.D.M., Pakur itself
goes to show that there was subsisting apprehension of breach of peace
in respect of a land dispute between the parties hence, the learned
Additional Sessions Judge-I, Pakur has committed a grave illegality by
setting aside the same on the ground that parties have not been
provided with the opportunity to place their case. Hence, in the
considered opinion of this Court, the impugned order dated 25.03.2026
passed in Criminal Revision No. 79 of 2025 by the learned Additional
Sessions Judge-I, Pakur, is not sustainable in law. Accordingly, the
same is quashed and set aside.
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9. In the result, this criminal miscellaneous petition is allowed to the
aforesaid extent only.
10. In view of the disposal of this criminal miscellaneous petition,
pending Interlocutory Application, if any is also disposed of being
infructuous.
(Anil Kumar Choudhary, J )
.
High Court of Jharkhand, Ranchi
th
Dated the 27 October, 2026
AFR/ Amar
Uploaded on- 02/11/2026
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