Bijendra Rai and Others vs Mohan Rai and Others

Hari Lal Agrawal, J.—This application on behalf of the members of the 2nd party is directed against an order dated 5th of January, 1975 passed by an Executive Magistrate converting a proceeding u/s 144 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') into one u/s 145 of the Code.

The dispute between the two parties cropped up in relation to certain landed property. On a police report a proceeding u/s 144 of the Code was started by the Sub-divisional Officer, Danapur in the year 1975. Both the parties filed their respective show cause. Whereas the 1st party claimed joint possession and cultivation as members of a joint family with the petitioners the 2nd party asserted that there was a disruption in the family by virtue of a partition by metes and bounds long ago and they were in exclusive possession of the lands.

On the 5th of January, 1976, i.e. on the date the impugned order was passed, the court of the Sub-divisional Officer, Danapur, was presided over by Shri Md. Shahabuddin, an Executive Magistrate of that place. He on considering the nature of the dispute and the claims put forward by the contesting parties, came to the conclusion that the same could not be disposed of in the proceeding u/s 144 of the Code and proper procedure to be adopted was to convert the proceeding u/s 145 of the Code. He accordingly passed an order converting the proceeding as already said earlier. In the impugned order, he has referred to the matters and materials on the basis of which he came to the conclusion mentioned above.

Shri Jagdish Pandey who appeared in support of this petition, contended that Shri Md. Shahabuddin, the Executive Magistrate was not an Executive Magistrate "Specially empowered by the State Government" for proceeding u/s 144 of the Code, as according to the provisions contained u/s 144, the District Magistrate, the Sub-divisional Magistrate and only such Executive Magistrates, who are "Specially empowered by the State Government in this behalf" may make an order in a proceeding u/s 144 of the Code.

In my opinion, this contention is erroneous and misconceived. By the impugned order the learned Magistrate has not passed any order in the nature of any order contemplated by the scheme contained in Section 144 of the Code; all that he has done is to initiate a proceeding u/s 145 of the Code.

Section 145 of the Code "empowers an Executive Magistrate" by an order in writing to initiate a proceeding u/s 145 of the Code; without being "specially empowered by the State Government", as in the case of Section 144 of the Code. In my opinion, the impugned order merely amounts to initiation of a proceeding u/s 145 of the Code and does not amount to any order passed in a proceeding u/s 144 of the Code. Shri Pandey does not dispute that as an Executive Magistrate Shri Md. Shahabuddin was competent to initiate afresh proceeding u/s 145 of the Code. It has since been settled by several authorities of this Court that the use of the expression "conversion" is merely a misnomer when a pending proceeding u/s 144 of the Code is purported to be converted into proceeding u/s 145 of the Code, Actually what is done by such an order is that when a Magistrate on the materials which he examines in the proceeding u/s 144 of the Code, feels satisfied "that a dispute likely to cause a breach of the peace exists concerning any land...within his local jurisdiction" and which authorises him to make an order in terms of section 145 of the Code, initiates a fresh proceeding u/s 145 of the Code.

As the application must fail in the view that I have taken of the matter, it is not necessary to go into any other question such as the maintainability of the application or the like, but before parting with this case, I may refer to another matter which was raised by Shri Pandey. With reference to a notice, a copy of which has been made Annexure ''2'' to the petition, he contended that the learned Exeoutive Magistrate has proceeded to attach the properties, in question, contrary to the provisions contained in Section 145 of the Code.

The present application is directed against a specific order and I would rather refrain from taking note of any subsequent or other matter beyond that which is covered by the impugned order directly. It would, however, be open to the petitioners to raise, if so advised, any other question before the Magistrate before whom the proceeding may be taken up.

I would accordingly dismiss this application.