Elumalai Gounder vs Annamalal Gounder and 15 Others

K.N. Mudaliyar, J.—A Party are the Petitioners before the learned District Magistrate, (J) Chingleput on a receipt of a police report dated 12th June 1967. The learned First Class Magistrate. Executive, Kancheepuram passed an order u/s 145(1) Code of Criminal Procedure The case set up by the Petitioners is that the village Odanthangal is an estate and that they are ryots and they have been in possession of the same. ''B'' Party 1 to 8 claim to be vendees from the inamdar. The claim of the counter Petitioners is that the said village is an Ekabogam Mirasi and that the Petitioners are only tenants under the mirasdar and that they have no occupancy right. At this stage, we are not really concerned with the relative merits of the case set up by the respective parties. On 26th December, 1967 the learned District Magistrate passed an order in the following terms:

Further proceedings dropped.

Before I consider the legal arguments submitted by Mr. V.S. Rangaswami Ayyan-gar assailing the order of the learned District Magistrate, I want to make it clear that the statement filed by the counter-Petitioner No. 2 Kanna Gounder makes it abundantly clear that substantially a dispute, likely to cause the breach of the peace exists concerning the said village.

It is argued by the learned Counsel for the Petitioners that the order passed by the learned District Magistrate does not state the grounds in support of the order and that when proceedings are started u/s 145(1) Code of Criminal Procedure there ought to be a continuation of the proceedings save for the exceptional reasons mentioned in Section 145 Sub-section (5).

Sub-Section 5 of Section 145 Code of Criminal Procedure reads as follows:

Nothing in this Section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists of has existed; and in such case, the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to that cancellation, the order of the Magistrate under Sub-section (1) shall be final.

At the very outset it is clear no person or party interested in the matter showed to the court that no such dispute as aforesaid existed or exits. The very fact that the A party are the Petitioners before this Court and that being aggrieved by the order of the court below, should have chosen to come before this Court is itself an indication that the dispute likely to cause the breach of the peace still exists. It is obvious that no grounds have been stated by the learned District Magistrate (J) Chingteput.

A number of decisions which throw considerable light on the scope of Section 145(5) Code of Criminal Procedure have been cited from the Bar; Kuppu-swami Ayyar J., in Amritlal N. Shah Vs. V. Nageswara Rao, held:

It is only if there has been a subsequent settlement or if the Petitioner agreed to give up his lease and not to claim back possession of the property that action can be taken u/s 145 (5) of the Code of Criminal Procedure and proceedings dropped. Marely because there has been no farther violence it could not be said that there cannot be a breach of the peace and that proceedings should be dropped, A continuance of the breach of this peace is not necessary before a final order could be passed.

This ruling in Misil Mirdha v. Abdul Rahim AIR (1934) Cel. 787 is not really helpful to this Petitioners. That is a case where processing''s were dropped as a result of the death of a party to the proceedings. The learned Judge held that fresh proceedings are without jurisdiction. This decision is not apposite.

Agarwala J. In Rajdee Singh v. Emperor A I. R. 1948 All. 424 held that the only mode of cancellation of an order u/s 145(1) before the matter is finally disposed of on merits is that provided by Section 145(5). In the particular case before the learned judge, an order dismissing a complaint u/s 145 for default of appearance of the complaint on the date fixed in the notice issued u/s 145(1) is held to be without jurisdiction when the Magistrate does not let u/s 145(5).

In Narasayya v. Venkiah ILR Mad. 232 Krishnan, J. held;

It is open to a Magistrate who has passed a preliminary order u/s 145 of the Code of Criminal Procedure directing the parties to file written statements as regards their respective claims to possession of the subject matter in dispute to subsequently drop the proceedings if he is satisfied that there was no likelihood of a breach of the peace....

Chandra Reddy J., in Kosanna v. Rama-swami 1945 M. W. N. (Crl.) 272 held:

It is competent to a Magistrate to drop proceedings at any stage of the proceedings provided he is satisfied that no dispute exists that is likely to cause a breach of the peace. The learned Judge further held:

The expression ''so required to attend'' in Sub-section (5) does not give any indication as to the stage at which a Magistrate can drop proceedings. The court has jurisdiction to drop preceding suo-motu.

In another decision Sambasiva Rao v. State 1954 M.W.N. Cr. 119 at 120 after considering the reasoning embodied in the judgment of Kuppuswami Ayyar J, in Amritlal N. Shah v. Nageswara Rao 1946 II M. L. J. 349 Balakrishna Ayyar, J. observes as follows:

I find it difficult to accept the contention of the counsel for the Petitioner. The purpose of Section 145 Code of Criminal Procedure is to confer on Magistrates power requisite to maintain public order when disputes concerning immovable property threaten to cause a breach of the peace-I can see nothing in the section which precludes the Magistrate from dropping proceedings, when he is satisfied that no breach of the peace is likely to occur. Sub-section (5) of that Section provides:

Nothing in this section shall preclude any party so required to attend or any other person interested, from showing that no such dispute as aforesaid exists or has existed and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.

It will be noticed that in the first part of the Sub-section the words used are "that no such dispute as aforesaid exists or has existed." The expression ''has existed'' would'' relate to a point of time anterior to that on which the party seeks to satisfy the Magistrate. Under this Sub-section, the word ''exists'' would relate to the time at which the party seeks to satisfy the Magistrate about the absence of a dispute. A party may be able to satisfy the Magistrate that no dispute exists in one or more of a variety of ways. The contention that ones proceedings are commenced u/s 145, the Magistrate must go on to the final end and decide who was in possession will be shown to be incorrect by one illustration. Suppose on receipt of a copy of the preliminary order u/s 145(1) Code of Criminal Procedure one party goes to the appropriate civil court and files a suit and obtains the appointment of a receiver. In such case it will be perfectly futile for the Magistrate to go on with his enquiry and if fact, if he does so, there might well result a conflict, between his orders and that of the Civil Court. To the extent that it states that where there has been a subsequent settlement, proceedings may be dropped, the decision in Amritlal N. Shah v. Nageswara Rao 1946 II M.L.J. 349 is undoubtedly right. But with respect to the learned Judge his statement that it is only in the circumstances that, be mentions that proceedings, can be dropped, seems to me to require qualification; the category or list of circumstances that he contemplated would seem to need addition."

I am in respectful agreement with the observations of Balakrishna Ayyar J regarding the interpretation of Section 145(5) Code of Criminal Procedure.

Another decision of Sadasivan, J.. in Ula-gampathy v. Koil Pillai menickam, 1961 M.W.N. Cr. 192 is cited in support of the argument of the learned Counsel for the Petitioners. Ramaswamy J, in Velur Devasthanam by its Headclerk R. Rama-swami Pillai v. A. Sarnbandamurthi Nainar Crl.R.C. No. 1227 of 1951 found the order of the learned Sub Divisional Magistrate competent in law to pass an order dropping the proceedings at the stage at which he has done. Ex facie the order of the learned Sub Divisional Magistrate shows that he was satisfied that there existed no dispute likely to cause breach of the peace, Thereafter the learned Magistrate passed the order u/s 145(1) canceling the preliminary order.

Applying these principles of law gleaned from the foregoing decisions, I find that the order in question is totally bereft of any ground to support the same. I further find that the circumstances envisaged u/s 145(5) did not exist at the time when the impugned order was passed. For these two reasons I hold that the order passed by the learned District Magistrate J. Chingleput is totally without jurisdiction.

The revision petition is allowed and the District Magistrate is directed to proceed with the further stages of the enquiry as expeditiously as possible.