Baldeo Raj Sachdeva and Others vs Mahabir Ojha and Another

J. Narain, J.—This application in revision is directed against the order dated the 12th April, 1971 by which the sub-divisional Magistrate, Giridih, has started a proceeding u/s 145 of the Code of Criminal Procedure and has asked both the petitioners and the opposite party to refrain from going upon the land in dispute. The subject of dispute is coal and fireclay an dhawra of Ghutway Colliery over an area of 850 bighas situate within Chandrapura Police Station, in the district of Hazaribagh.

Petitioners 1 to 4 are partners of a registered firm styled as S.S. Mining Corporation. Prabhat Kumar Banerjee (petitioner no. 7) is an employee of that Corporation.

The subject of dispute originally belonged to the family of Jai Kumar Ojha, brother of Sarwan Kumar Ojha (opposite party no. 2). The partners of S.S. Mining Corporation acquired it by means of three registered documents dated 5.8.1969, 30.12.1969 and 30.12.1969 executed by Jai Kumar Ojha as the Karta of the family. On 6.7.1970, Jai Kumar Ojha had executed a general power of attorney also in favour of S.S. Mining Corporation. Since it concerned mining operations, permission of the State Government was obtained and a deed of agreement was executed in favour of the S.S. Mining Corporation on 19.5.1970. In this manner the petitioners claim possession over the subject of dispute from 5.8.1969 after payment of more than a lac of rupees to the family of Jai Kumar Ojha, brother of opposite party no. 2.

On the 23rd February, 1971, an occurrence took place in the office of the S.S. Mining Corporation Ghutway Colliery for which an information was lodged at Chandrapura Police Station. The information was of the kind that Kumar Kamlesh Maldahiar, Jai Kumar Ojha and Sarwan Kumar Ojha (opposite party no. 2) along with their supporters came to the office of S.S. Mining Corporation and Kumar Kamlesh tore the telephone wires, rubbed out the name of the Colliery written on the office wall and by means of a loaded pistol threatened Prabhat Kumar Banerjee and other employees of the Colliery with dire consequences. S. Seromani, Sub-Inspector of the Dugdha Outpost had come along with these persons and despite request by Prabhat Kumar Banerjee, no action was taken against the miscreants. Accordingly, an information about the incident was lodged at the Chandrapura Police Station. The members of the opposite party also had lodged some sort of information with respect to the occurrence of the 23rd February, 1971, and the entire matter was inquired into by the Officer-in-charge of Chandrapura Police Station. He made enquiries, examined witnesses, looked into documents and found that the allegation made on behalf of the opposite party was fake and baseless. He, however, found that the members of the opposite party wanted to dispossess S.S. Mining Corporation from the subject of dispute for which they had already received Rs. 1,42,000/- and their attitude was such that the petitioners apprehended trouble and danger and breach of the peace. Accordingly, he recommended action u/s 107 of the Code of Criminal Procedure against the members of the opposite party. This report dated 18.3.1971 was forwarded by the Inspector of Police to the Sub-divisional Magistrate, Giridih, who on the basis of this report, started a proceeding u/s 107 of the Code of Criminal Procedure against the members of the opposite party and Kumar Kamlesh. They were asked to show cause why they be not made to execute bonds of Rs. 1,000/- with two sureties of the like amount to keep peace for a period of one year.

During the pendency of the proceeding u/s 107 of the Code of Criminal Procedure another incident took place on 29.3.1971, for which a petition was filed before the Sub-divisional Magistrate, Giridih, on 30.3.1971. He sent the matter for enquiry to the Inspector of Police. It appears that on 29th March, 1971 at about 6 p.m. Prabhat Kumar Banerjee (petitioner no. 7) was out for marketing when he was surrounded by Jai Kumar Ojha, his brother Sarwan Kumar Ojha (opposite party no. 2) and others and he was threatened with dire consequences as he had started a proceeding u/s 107 of the Code of Criminal Procedure. The Inspector of Police held an inquiry where S. Seromani, Sub-Inspector of Police, Dugdha Outpost, was also present. The Inspector of Police came to the conclusion that the members of the second party were very turbulent type of men and were in the habit of taking law in their own hands and Jai Kumar Ojha and Sarwan Kumar Ojha were very shrewd litigants. Accordingly, by his report dated 9.4.1971 he suggested action u/s 117(3) of the Code of Criminal Procedure.

Now turning to the proceeding u/s 107 of the Code of Criminal Procedure, it may be mentioned that on 2-4-1971, by which date the report of the Inspector of Police for action u/s 117(3) of the Code of Criminal Procedure had not been received, the Sub-divisional Magistrate passed some order. What had happened was that a petition was filed on 2.4.1971 on behalf of the opposite party for drawing up a proceeding u/s 144, Code of Criminal Procedure, against both the parties, and to call for a report from the Police whether the petitioners also be not proceeded against u/s 107, Code of Criminal Procedure. The Sub-divisional Magistrate called for a report from the Officer-in-charge, Dugdha Outpost, and the case was adjourned to 26.4.1971. The petitioners objected to the enquiry being entrusted to S. Seromani, who was the Officer-in-charge of Dugdha Outpost, inasmuch as he was prejudiced against the petitioners and was siding with the opposite party. It was also brought to the notice of the Sub-divisional Magistrate that S. Seromani was present with the opposite party at the time of incident on 23.2.1971 and despite requests to him, he did not take any action over the incident. On this objection of the petitioners, the learned Sub-divisional Magistrate on 5.4.1971 ordered that further action on his order regarding the report from the Officer-in-charge, Dugdha (S. Seromani), may remain in abeyance till the next date.

On 6.4.1971, a petition was filed on behalf of Mahabir Ojha for action under Sections 107 and 144, Code of Criminal Procedure, against the petitioners. On this the learned Sub-divisional Magistrate called for a report from the Officer-in-charge of Dugdha Outpost and ordered the case to be put up on 26.4.1971. Without, however, waiting for the next date (26.4.1971), the learned Sub-divisional Magistrate passed order on 12.4.1971 which was not the date fixed in the case, drawing up proceeding u/s 145, Code of Criminal Procedure. It is against this order that the present revision application is directed. What had happened on 12.4.1971 was that a report had been received from S. Seromani, the Officer-in-charge of Dugdha Outpost, whereby he reported for action under Sections 144 and 145 of the Code of Criminal Procedure against the petitioners, and on going through this report, the learned Sub-divisional Magistrate observed that there appeared to be bona fide land dispute between the parties, and since the factum of possession had to be decided once for all, he started a proceeding u/s 145, Code of Criminal Procedure, against both the parties and restrained them from going upon the subject of dispute. He also attached the subject of dispute u/s 145(4), Code of Criminal Procedure. While recording this order, the learned Sub-divisional Magistrate stated that both the parties were armed with documents and papers in support of their respective claims and were ready to come to clash at any time in their efforts to exercise their own possession and, therefore, he was satisfied that there was bona fide land dispute between the parties.

I have given above the necessary facts to show the background against which the proceeding u/s 145 of the Code of Criminal Procedure was started against both the parties. For starting a proceeding u/s 145, Code of Criminal Procedure, the Magistrate has to be satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land of water or the boundaries thereof. It was held in (1) R.H. Bhutani Vs. Miss Man J. Desai and Others, that the satisfaction referred to under Sub-section (1) of Section 145 is of the Magistrate. In (2) Ganga Bishun Singh V. Rajo Chaudhuri (A.I.R. 1924 Pat 487), it was held that:

It is for the Magistrate to come to a decision as to whether there is or is not a likelihood of a breach of the peace. The Magistrate, in order to assume jurisdiction u/s 145 has to satisfy himself about the likelihood of the breach of the peace. He is to exercise his own judgment upon the materials placed before him, and to arrive at a conclusion as to whether upon the materials placed before him there is a likelihood of a breach of the peace.

Thus the point for decision is whether the learned Sub-divisional Magistrate exercised his judgment upon the materials that were placed before him and felt satisfied about the necessity of the present proceeding. By exercise of judgment is manifestly meant exercise of judgment in a judicial manner. Connected events give me an impression that the exercise of judgment by the learned Sub-divisional Magistrate cannot be said to be exercise of his judgment in a judicial manner. The learned Magistrate was aware of what had happened on 23.2.1971 and had himself dealt with the report received from the Sub-Inspector of Police, Chandrapura Police Station, suggesting action u/s 107 of the Code of Criminal Procedure against the opposite party, had himself called for a report from the Inspector of Police, Chandrapura Police Station, whether action u/s 117(3) should be taken or not and had on the objection raised by the petitioners stayed the starting of a proceeding under Sections 107 and 144 of the Code of Criminal Procedure against the petitioners. He was also aware of the fact that because he had asked S. Seromani, Officer-in-charge of Dugdha Outpost, to make an inquiry and report whether action under Sections 107 and 144 should be started against the petitioners or not, the petitioners had raised serious objection, and he had stayed the inquiry by S. Seromani. Strangely enough, it was upon the report of the same S. Seromani that he started the proceeding u/s 145 of the Code of Criminal Procedure and with regard to the same subject of dispute. It is also important to note that 12.4.1971, when he started the proceeding u/s 145, was an intermediate date. Only on 6.4.1971 he had ordered that the above matter will be considered on the next date, that is on 26.4.1971. But it is surprising that on the petition of Mahabir Ojha on 12.4.1971, he started the proceeding u/s 145, Code of Criminal Procedure. By 12.4.1971, the learned Sub-divisional Magistrate had already received the report from the Inspector of Police recommending action u/s 117(3), Code of Criminal Procedure against the members of the opposite party. It was in such circumstances that the learned Magistrate thought it fit to start a proceeding u/s 145 against both the parties. Can it be said that this was an exercise of judgment in a judicial manner? I think, not.

There is yet another reason why the order impugned cannot be sustained. It will be noticed that a proceeding u/s 107, Code of Criminal Procedure, had already been started and during the pendency of that proceeding, this order was passed against the petitioners in their absence. In this connection it would be relevant to refer to the observations made in (4) Syed Ismail Qadri Vs. Syed Abdul Nabi, :--

It is now clear from the facts set out above that the learned Sub-divisional Magistrate, Gulbarga, has acted arbitrarily in passing orders u/s 145 of the Criminal Procedure Code, without issuing notice to the respondent. It is further clear from the facts of the case stated above, the proceedings u/s 107 of the Criminal Procedure Code, had in fact been instituted against the present petitioner and his followers in connection with the dispute, relating to these lands and the same was pending in court on the date on which the Sub-divisional Magistrate, passed the impugned order. It is needless to state that the learned Sub-divisional Magistrate was not at all justified in entertaining a petition filed by the petitioner for action being taken u/s 145 of the Criminal Procedure Code.

The same remarks with full force apply to the order of the Sub-divisional Magistrate in the present case.

In the impugned order the learned Sub-divisional Magistrate has stated that both the parties were armed with documents of title and that there was a bona fide dispute over possession. The learned Sub-divisional Magistrate had in his possession the inquiry report dated 18.3.1971 of the Officer-in-charge of Chandrapura Police Station, and therein clear mention was made of the various documents of title in favour of the petitioners. These were registered documents of title in favour of the petitioners, including the one granted in their favour by the State Government. As against this, no document of title was produced before any Police Officer or before the Sub-divisional Magistrate by the opposite party and, therefore, for the learned Sub-divisional Magistrate to say that even the opposite party were armed with documents of title is against actual facts.

It was held in the Full Bench case of (5) Shebalak Singh Vs. Kamabuddin Mandal and Others, that "When one party is clearly in the wrong and threatens to usurp the rights of another, who is in actual possession of the land in dispute, the proper remedy is an order under S. 144 or S. 107, Criminal Procedure Code". The learned Sub-divisional Magistrate had already started a proceeding u/s 107, Code of Criminal Procedure, and for determining the necessity or otherwise of the proceeding u/s 144, he had already adjourned the matter to 26.4.1971 and, therefore, there was no warrant for him to (sic)asten to take action u/s 145.

In (6) Bhuneshwar Prasad and Others Vs. Rommoy Roy, , it was held:

It is only where there is a dispute likely to cause a breach of the peace concerning any land or water or boundaries thereof and the dispute requires to be decided on evidence that resort to S. 145 becomes necessary; and it must be remembered that for this purpose the dispute has to be a real dispute and not a mere pretence on behalf of one of the contesting parties. The judicial pronouncements already referred to are clear that where there is no such real dispute orders u/s 144 are not improper.

The point to be noticed is that Jai Kumar Ojha, brother of opposite party no. 2, as the Karta of the family had executed three registered documents in favour of the partners of S.S. Mining Corporation, who are the petitioners in this Court. He had also executed a general power of attorney and then the State Government had approved the managing contract in favour of the petitioners. In such a circumstance, it cannot be legitimately said that the dispute was a real dispute, and not a mere pretence on behalf of the opposite party.

Thus it is clear that in the present case, the learned Sub-divisional Magistrate passed the order on an intervening date and without hearing the petitioners and when a proceeding u/s 107, Code of Criminal Procedure, was already pending against the opposite party and the dispute alleged was a mere pretence and he did not exercise his judgment in a judicial manner. In view of these infirmities the order dated the 12th April, 1971 recorded by the learned Sub-divisional Magistrate, Giridih, cannot be sustained and it is set aside. The application, is, accordingly, allowed.