Bengali Parida and Others vs Banchhanidhi Panigrahi

Courtney-Terrell, C.J.—This case has been referred to a Bench by Mac-pherson, J. It is a reference to the High Court by the Sessions Judge of Cuttack, who recommends that an order of attachment made by the Sub-Divisional Magistrate u/s 146, Criminal P.C., may be set aside and the case remanded for retrial.

The order sheet of the Sub-Divisional Magistrate shows that on 10th November 1928, he received a police report that a breach of the peace was likely to occur concerning an area of some 12 acres in mauza Panisiali upon which paddy was growing, there being two rival claimants. He called for a further report which when furnished on 22nd left it in doubt which party had grown the standing crop. The first party had got delivery of possession from the Court in 1926 but in 1927 the second party had cultivated it and had cut the crop. The Magistrate served notice u/s 144 on the first party not to interfere with the harvesting by the second party.

On 26th November the first party showed cause. The Magistrate directed proceedings u/s 145, and attached the land and the crops directing the police to effect the harvesting and fixed 18th December for the written statements. On that date he granted further time until 16th January 1929, for the written statements which were duly filed on that day when the Magistrate fixed the hearing of evidence for 4th February and summoned the witnesses for that date. Neither party appeared on the 4th and the Magistrate stating that he was unable to find who was in possession made the order u/s 146 complained of.

The order was perfectly right. If the parties refused, after ample time had been given them to adduce evidence, the Magistrate was not bound to make an enquiry on his own account. He is entitled to act on his apprehension of a breach of the peace founded on the police report. If the proceedings had been initiated by one of the parties and if neither party had appeared at the hearing the matter would have been on a different footing. The Sessions Judge mentions the case of Parsuram Rai v. Shivajatan Upadhaya AIR 1922 Pat. 544. This case is very badly reported and there is no adequate statement of the facts upon which the decision was based.

In Bijoy Madhub v. Chandra Nath 14 C.W.N. 80, a similar order was made. The parties did not file written statements and prayed for a local investigation which was refused. Neither side produced evidence and after delay the Magistrate made the order which was approved by the High Court. The case of Sheikh Mansar Ali v. Mali Ullah 12 C.W.N. 896, is clearly distinguishable from this one because in that case the Magistrate gave the parties no time to produce evidence, in other words, he did not conduct the enquiry u/s 145 in a proper manner.

I do not agree with the reasoning of the Court in Sheobalak Rai v. Bhagwat Pande [1912] 40 Cal. 105. I can find no obligation imposed by Section 146 on the Magistrate to make independent enquiry if the parties having been given adequate opportunity decline to adduce evidence as to possession. The Magistrate is then entitled to fall back on such information as he may have before him which would make him apprehensive of a breach of the peace. In the absence of material which would enable him to protect the possession of one or other of the parties he must attach the property. I would reject the reference.

Rowland, J.

I agree.