Bishwanath Singh vs Ramdhwaja Singh and Others

. P.N. Harkauli, J.—This application for revision is directed against an order passed by the learned v. Addl. Sessions Judge, Varanasi.

It appears that an application was moved before the learned Sub-Divisional Magistrate alleging that there was an apprehension of a breach of the peace on account of a dispute relating to the crop which had been cut and stored in the khalihan. On the basis of that application the learned Magistrate initiated proceedings u/s 107/116 Code of Criminal Procedure. While these proceedings were pending a Misc. application was moved before the learned Magistrate on behalf of the applicant alleging that the opposite parties were not allowing the applicant to thresh the crop which he had raised and which he had cut and stored in the khalihan. The learned Magistrate heard learned Counsel for the parties and thereafter he came to the conclusion that no action could be taken on this application in those proceedings. He pointed out that there were only two procedures open to him for preventing breach of the peace. One was by way of proceedings u/s 107/116 Code of Criminal Procedure and the other by way of proceedings u/s 145 Code of Criminal Procedure. Proceedings u/s 107/116 Code of Criminal Procedure were already pending. As for Section 145 Code of Criminal Procedure, the learned Magistrate did not say anything clearly as to whether it was a fit case for proceeding under that section or not. He, however, went on to discuss the material on record and then held that the applicant was in possession of the land and he had raised and cut the crop. In this view of the matter he passed an order directing the Station Officer of the Police Station to see that the applicant was not obstructed in threshing and taking away the crop stored in the khalihan. He also directed the Station Officer to ensure that there was no breach of the peace in this connection.

Aggrieved by this order, the opposite parties went up in revision before the learned Sessions Judge. The learned Sessions Judge was of the view that if the learned Magistrate was satisfied that there was an apprehension of breach of the peace arising out of a dispute about the crop, the Magistrate should have initiated proceedings u/s 145, Code of Criminal Procedure. In this view of the matter, the Sessions Judge allowed the revision application and set aside the order of the learned Magistrate and directed that the case be sent back to the learned Magistrate for doing "the needful according to law and the observations made in the body of this judgment."

Against this order of the learned Sessions Judge the applicant has filed the instant revision.

Learned Counsel for the applicant contended in the first place that the order passed by the learned Magistrate was not a Judicial order but an executive order and so the learned Sessions Judge had no jurisdiction to entertain a revision against that order. With this contention, however, I am unable to agree. It appears to me to be clear from the observations made by the learned Magistrate in the order in question that he purported to act judicially and as a court. He observed that it was the duty of the "court" to see that there was no breach of peace and that there were only two courses open to him in the matter: One being to proceed under Sections 107/116 Code of Criminal Procedure and the other to proceed u/s 145 Code of Criminal Procedure. The learned Magistrate went on to point out that proceedings u/s 107 Code of Criminal Procedure were already going on and observed that it was to be seen whether action u/s 145 Code of Criminal Procedure should be taken or not. The order of the learned Magistrate further shows that he gave a hearing to both sides and after considering the material on record held that the crop had been raised and cut by the applicant who was in possession of the land. In these circumstance, it appears to be clear that the learned Magistrate had Section 145 Code of Criminal Procedure in mind and he purported to act in exercise of the power conferred by that Section, though of course he did not comply with the procedure laid down in that Section. That being so, I am of the opinion that the order by the learned Magistrate was a judicial, and not an executive order, and it was consequently open to revision by the Sessions Court.

Now, it is clear that the order of the learned Magistrate is not in accordance with the provisions of Section 145 Code of Criminal Procedure nor did he follow the procedure laid down in that Section. It was, therefore, liable to be set aside, and was rightly set aside by the learned Sessions Judge.

The next contention of the learned Counsel for the applicant was that in any case it was for the learned Magistrate to decide whether to initiate proceedings u/s 145 Code of Criminal Procedure or not and it was not open for the learned Sessions Judge to indirectly direct the learned Magistrate to initiate proceedings u/s 145 Code of Criminal Procedure which the order of the learned Sessions Judge clearly amounts to. The argument appears to be to have force. It has been laid down by the Supreme Court in R.H. Bhutani Vs. Miss Man J. Desai and Others, that the satisfaction under Sub-section (1) of Section 145 Code of Criminal Procedure is of the Magistrate and the question whether on the materials before him he should initiate proceedings or not is, therefore, in his discretion and that the High Court in the exercise of its revisional jurisdiction would not go into the question of sufficiency of the material which has satisfied the Magistrate. It would appear from this ruling that the Magistrate could not be directed by a superior court to start proceedings u/s 145 Code of Criminal Procedure. If that is so, then it is clear that the learned Sessions Judge''s order directing the learned Magistrate to do "the needful according to law and the observations made in the body" of his judgment, clearly amounted to a direction to initiate proceedings u/s 145 Code of Criminal Procedure.

Even assuming that the learned Sessions Judge could issue such a direction, it will be seen from the order of the learned Magistrate that the crop had been cut and removed to the Khaliyan. That being so, proceedings u/s 145 Code of Criminal Procedure could not be initiated in respect thereof. It has been held by this Court in Chaurasi v. Rama Shanker ILR All. 264 that the word "crops" or other produce of land used in Section 145 Code of Criminal Procedure, do not include crops which have been severed from the land upon which they grew. Similarly, in Sita Das v. Jaisri Das 1926 Indian Cases 483 it has been held by this Court that the Magistrate has no jurisdiction to proceed u/s 145 Code of Criminal Procedure in the case of a dispute relating to crops where before the initiation of proceedings under the section the crops are severed from the land.

For these reasons, I am of the opinion that while the learned Sessions Judge was right in setting aside the order passed by the learned Magistrate, he was not justified in remanding the case with the direction to do the "needful" in the light of his observations, which was virtually a direction for initiating proceedings u/s 145 Code of Criminal Procedure.

Accordingly, the revision is allowed in part and while the order of the learned Sessions Judge setting aside the order of the learned Magistrate is upheld, his order remanding the case back to the learned Magistrate for doing the needful according to law and the observations of the learned Sessions Judge, is set aside.