Brijendra Rai and Others vs Mohan Rai and Others

Hari Lal Agrawal, J.—This application on behalf of the members of tihe 2nd party is directed against an order dated 5th of January, 1975 passed toy an. Executive Magistrate converting a proceeding u/s 144 of the Cr.PC (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, Banapur in tihe year 1975. Both the parties filed their respective show cause: "Whereas the 1st party claimed joint pas-session 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 court 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-Magistrates and only such Executive Magistrates, who are "specially empewei- ed by the State Government in this be-half" may make an order in a proceeding ing under -Section 144 -of Dine Code.

In my opinion, this -contention is erroneous and misconceived. By the impugned order the learned Magistrate has not passed any order in the nitrite 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 toeing "specially empowered by the State Government", bb 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. Snaha-buddin was competent to initiate a fresh proceeding under .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 within pending proceeding u/s 144 of the Code is purported to be converted into a proceeding u/s 145 of the Code. Actually what is done -fey such an order As 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 therefore parting with this case, I may refer o 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 Executive Magistrate has proceeded to attach the properties, in question contrary to the provisions contained in Section 145 of the Code.

The present application 3s directed against a specific order and I would rather refrain from taking note of any subsequent or other matter ''beyond half is covered by the impugned order directly. It would, however, be open to Hie petitioners to raise. If so advised, any other question before the Magistrate before whom the proceeding may be taken

I would accordingly dismiss this application.

Ch. S.S. Sinha, J.

I agree that the application be dismissed.