Ahmed Tea Company (P) Ltd. vs Mansuta Sawna

B.L. Hansaria, J.—A proceeding u/s 145 Code of Criminal Procedure was drawn up on 7.12.78. In that providing the Petitioner herein was a member of the first party. He remained absent on 28.5.79 and also on the previous date whereupon the leased IDM (Executives) dropped the proceedings because of the "default of the first party". This order has been impugned in this revision.

There is a consensus among different High Court in India that such a proceeding cannot be dismissed for default. The reason for the same is that the power u/s 145 is exercised not in the interest of any individual as such, but for the larger public interest of preventing breach of peace. All that private individual does in such a case'' is to bring the matter to the notice of the Magistrate stating that there is an apprehension of breach of peace. It is because of this that the informant in such a case is not tested as a complainant of any offence. Of course, if the court is satisfied for reasons to be recorded that there is ho threat to the breach of peace, an order of the present nature can be cancelled under Sub-section (5), It may also be pointed out that though proceeding u/s 145 has some civil character as would be apparent from the fact that under Sub-section (7) there is provision even for substitution of legal representatives of a deceased party, nonetheless, the proceeding is not wholly civil in nature, and dismissal of such a proceeding for default is not visualised by law.

Reference may first be made in this connection to a Bench decision of Allahabad High Court in Babu v. Shyam Singh ILR 1930 All 543 wherein this view has been expressed after referring to a number of decisions pointing out that the power u/s 145 is exercised not really to protect the interest of the private parties, but primarily in the Interest of the State to prevent a breach, of the peace, It is this apprehension which gives jurisdiction to a criminal court in a matter relating to a dispute concerning even land.

By referring to the aforesaid decision, it was held in Bhavrao Ganpatrao Vs. Bhimrao Tukaramji and Others, that a preliminary order passed under Sub-section (1) has either to find its culmination in the final order Viaualised by Sub-section (4), or it could be cancelled under one circumstance, and we circumstance alone, namely that no dispute threatening public peace exists or had existed.

Similar view was taken in Bhava Rao v. Ramji Rao AIR 1964 P&H 444 which pointed out that a Magistrate is not relieved of his duty merely became the person at whose instance proceedings were drawn fails to appear. Indeed, as early as 1952 this Court had held in Kamini Kumar v. Vim Kanta AIR 1933 Gau 198 that the law does not provide for dismissal of such a ''proceeding on the ground that one of the parties is absent. Similar view finds expression in Channiah Hyamegowda Vs. Hyamiah and Another,

This being the position in law, the impugned order can-not be sustained and is set aside. The proceeding would be taken back to the file by the learned Magistrate and in view of the fact that the proceeding Land been kept under attachment for these long 5 years by virtue of an order passed by this Court on 10.7.79, it is a fit case where the proceeding must be disposed of expeditiously.

The petition is allowed is aforesaid.