Gadagamma Venkatapathi vs Baliarsimhuni Sanyasiraju and Others

Sundaram Chetty, J.—This is a reference by the Sessions Judge of Vizagapatam with a recommendation that the order of the Subdivisional

Magistrate, Parvatipur, u/s 145, Criminal P. C, dated 30th June 1931 may be quashed as illegal and passed without jurisdiction. The facts of the

case which led up to this refer once have been clearly set forth in the order of the learned Sessions Judge. In view of those facts, I need hardly

state that the whole procedure adopted by the Subdivisional Magistrate is vitiated by the irregularities pointed out by the Sessions Judge. Section

145, Clause 1, makes it obligatory on the Magistrate to state in writing the grounds for his being satisfied that on account of the dispute in respect

of lands there is a likelihood of a breach of the peace. On passing such an order in writing he should require the parties concerned in such dispute

to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. The

further steps to be taken in connexion with a petition put in u/s 145 are also set forth in the other clauses of this section.

In the present case the learned Sub-divisional Magistrate seems to have overlooked the provisions of Clause 1 of the section as regards the

preliminary order to be passed by him. Not only did he omit to observe these conditions but he seems to have completely transferred the function

of making the investigation into the dispute to a Subordinate Magistrate whom he directed to make a local inquiry and submit a report. Section

148, Clause 1 of the Code enables the Subdiviional Magistrate to direct a Subordinate Magistrate to make a local inquiry and furnish him with a

report for his guidance in the trial of the petition. But under the guise of calling for such a report be ought not to depute the Subordinate Magistrate

for making the entire investigation and avoid the necessity of talcing any oral evidence which the parties may wish to adduce in support of their

respective claims. What the learned Subdivisional Magistrate has done in this case seems to my mind to be an abuse of the power conferred on

him by Section 148, Clause 1. It is clear from the final order of the Subivisional Magistrate passed on 30th June 1931, that he made no inquiry

whatever after the receipt of the report from the Subordinate Magistrate. The order is to say the least perfunctory and there is no finding as to the

vital point to be considered by the Subdivisional Magistrate in a proceeding like this. The inquiry should relate to the question of actual possession

and not to the question of right to possession. There is no clear finding in the order of the Subdivisional Magistrate as to which party was in actual

possession about the time of the receipt of information by him as to the existence of a dispute which was likely to cause a breach of the peace. It

has been held in a decision of this High Court reported in Arumuga Govindan v. Venkatasubbier [1908] 31 Mad. 82 that a Magistrate holding an

inquiry as to possession u/s 145, Clause 4, Criminal P.C., is bound to take the evidence himself and cannot delegate to a Subordinate Magistrate

the duty of recording such evidence. Any order passed by him without himself taking any evidence and depending solely on the report of the

Subordinate Magistrate should be deemed to be one passed without jurisdiction, on the authority of the aforesaid decision. I fully endorse the

remark of the learned Sessions Judge that the conduct of the Subdivisional Magistrate in dealing with the present case u/s 145, Criminal P.C., is

altogether unsatisfactory. I fail to see how the learned Subdivisional Magistrate omitted to observe the fundamental requisites laid down for a

proceeding u/s 145 of the Code and how he thought fit to shirk his own responsibility in the matter and shelve it to a Subordinate Magistrate. The

order passed by the Subdivisional Magistrate is manifestly wrong and is one made without jurisdiction. It is accordingly set aside and his

proceedings are quashed.