Azad Singh vs Rupla and another

V.S. Aggarwal, J.

The police submitted an information under Section 145 of the Code of Criminal Procedure to the Executive Magistrate, Sonepat. It referred to the dispute between petitioner Azad Singh son of Net Ram and Rupla son of Sardara residents of village Bajana Kalan. There was a dispute regarding a piece of land mentioned in that information and there being apprehension of breach of peace. Petitioner Azad Singh was mentioned to be the person in possession. The Executive Magistrate, Sonepat took cognizance under Section 145 Code of Criminal Procedure and on 12.2.1993 held that first party Azad Singh was in possession on the disputed piece of land.

Rupla preferred a revision in the Court of Sessions at Sonepat. Learned Additional Sessions Judge, Sonepat vide the impugned order dated 19.4.1994 accepted the revision and set aside the order passed by the learned Magistrate. The revision was accepted primarily on the ground that admittedly at the relevant time when proceedings under Section 145 Cr.P.C. were initiated, a civil suit for injunction was pending between the parties. Keeping in view the proceedings pending between the parties in the civil court initiation of action under Section 145 Cr.P.C. was not legal. Furthermore it was held that preliminary order under Section 145 Cr.P.C. was not passed and otherwise also the police information indicated that Azad Singh was in possession. In these circumstances, the order passed by the trial Court was set aside.

Aggrieved by the said judgment of the learned Additional Sessions Judge, Sonepat, the present revision petition has been filed. Subsection (1) of Section 145 Cr.P.C. reads as under :

"145(1). Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such a dispute to attend his court in person or by pleader, on a specified date and time, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.

On the strength of the same it was urged that no preliminary order had been passed and, therefore, the learned Additional Sessions Judge was justified in setting aside the order passed by the Executive Magistrate. Passing of a preliminary order is so basic that only thereafter the Magistrate gets jurisdiction to proceed under Section 145 read with Section 146 of the Cr.P.C. These provisions have been enacted to meet such a situation where there is likelihood of breach of peace because of dispute concerning any land, water or the boundaries. The said scope was explained by the Supreme Court in the case of Mathuralal v. Bhanwarlal & another, 1980 C.C. Cases 6(SC) in the following words :

"Let us therefore look at Section 145 and consider Section 146 in that context. Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the Criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring parties concerned to attend his court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under sections 145 and 146."

It is true that form of the order is not material because in a given set of circumstances where formal preliminary order is not drawn there can be existence of certain facts on the basis of which the Magistrate could act. It is not the words employed by him in passing the order which matters. There is no magic in certain words being used. If on certain facts the necessary ingredients of Sections 145 and 146 Cr.P.C. are satisfied and the Magistrate is satisfied that there was apprehension of breach of peace merely because the order is not couched in the contemplated language will not be vitiated. However, in the peculiar facts of the present case, there is nothing to indicate that the order passed by the learned Additional Sessions Judge requires any modification. Admittedly, no preliminary order had been passed. It is also not being disputed that at the relevant time petitioner had already filed a civil suit for injunction which was subsequently dismissed in default. Thus, by virtue of the order of the civil court the possession of the petitioner was protected. The report of the police indicated that it was the petitioner who was in possession. Till date there was nothing to indicate that there was breach of peace as such. These set of circumstances and facts indicate in terms that the preliminary order contemplated should have been passed. There was no apprehension of breach of peace and it had already been reported that the petitioner was in possession. There is no legal infirmity in this background in the impugned order which calls for any interference.

For the reasons, the revision being without merit fails and is dismissed.