Gajpat Rao and Another vs Smt. Ladli Kunwar and Others

P.N. Bakshi, J.—This application in revision arises out of proceedings u/s 145 Code of Criminal Procedure, On 2-8-1978 a preliminary order was passed u/s 145(1) Code of Criminal Procedure calling upon the parties to file their written statements in support of their respective claims to the disputed immovable property. While the proceedings were continuing, it appears that on Nth June, 1979, an application was filed by the applicants praying that the proceedings be dropped since there was no apprehension of breach of peace. The Magistrate called for a report from the police. After hearing both the parties he rejected this application on 5th July, 1979. It appears that the inquiry thereafter continued u/s 145(4) Code of Criminal Procedure. P. W. 5 has been examined. On 6th September, 1980 another application was filed by the applicant to the effect that the apprehension of breach of peace ceased to exist and that the proceedings be dropped. This application has been rejected by the impugned order, passed by the Magistrate on 9th October, 1980. Hence this revision.

I have heard learned Counsel for both the parties at considerable length and have also perused the impugned orders. Counsel for the applicant has argued that under the provisions of Section 145(5) Code of Criminal Procedure it was open to the applicants to allege at any stage during the continuance of the inquiry u/s 145(4) Code of Criminal Procedure that the apprehension of breach of peace has ceased to exist and on such allegations being made, it was mandatory for the Court to allow the applicants an opportunity of showing the non-existence of an apprehension of breach of peace. He argues that the Court below has acted illegally in the exercise of his jurisdiction in rejecting this application forthwith. On the other hand counsel for the opp. parties has submitted that the non-existence of the apprehension of breach of peace relates to the date on which a patty appears in Court in pursuance of the notice issued by the Magistrate after passing a preliminary order. His submission, in other words, is that if the party does not allege non-existence of an apprehension of breach of peace in the written-state-ment, filed by him, then it is not open to him at any latter stage to take this stand and to pray for dropping of the proceedings. The opp. parties'' counsel has also argued that there was no material or specific facts, alleged in the application dated 6th September, 80 filed by the applicant on the basis of which it can be said that the Magistrate should have given an opportunity to him to show that the apprehension of breach of peace ceased to exist.

learned Counsel for the opp. parties has also argued that the impugned order dated 6-9-1980 rejecting the application filed by the applicant for dropping the proceedings was an inter-locutory order and therefore, no revision was maintainable.

Counsel for the opp. parties has further submitted that the fact that the parties are litigating in proceedings u/s 145 Code of Criminal Procedure indicates that the dispute still exists and that there is an apprehension of breach of peace. Merely because there is no quarrel for two years, did not mean that the apprehension of breach of peace does not exist.

I have carefully considered the arguments advanced by learned Counsel for the parties and have also carefully perused the Supreme Court decision reported in (1981) SC 18, (1968) SC 1002 , Sankatha Singh Vs. Rahmat Ullah and Others, . These cases have been cited and discussed before several times. I do not consider it necessary to deal with them in detail. The principle of law laid down in these cases and others of the Supreme Court and this Court is very clear that the question of existence of an apprehension of breach of peace is a basic question. It is the foundation on which the jurisdiction of a Magistrate to proceed u/s 145 Code of Criminal Procedure can be invoked. If there exists apprehension of breach of peace, the Magistrate can pass a preliminary order and proceed with the enquiry. If there is no apprehension of breach of peace, he can not proceed u/s 145 Code of Criminal Procedure. There is nothing in Section 145 Code of Criminal Procedure to restrict the stage at which an objection can be filed by a party to show that no apprehension of breach of peace exists. I do not agree with the interpretation of the counsel for the opp. parties that such objections can be taken only by a party who is required to attend, at the time, when he files a written statement. It is true that at the stage of filing written-statement, this objection can be taken and if the Court is satisfied thereon it can cancel the order. But even at a subsequent stage and during the continuance of the proceedings u/s 145 Code of Criminal Procedure it can still be urged that the apprehension has ceased to exist now and therefore, the proceedings should be dropped. To my mind, there is no time limit fixed; nor is there any stage set for the moving of such an application of non-existence of apprehension of breach of peace, therefore, when such an application is moved, it is mandatory for the Court to give the parties an opportunity of proving the truth of his allegation. The word ''showing'' in Section 145(5) Code of Criminal Procedure has been interpreted by this Court as giving an opportunity to the party to lead evidence to prove his allegations.

In the instant case, the position appears to be that an application filed by the applicants denying the existence of apprehension of breach of peace was rejected by the Court on 6-7-79. This rejection order was passed after calling for a report from the police and bearing the parties. Fourteen months later on 6th September, 80, a fresh application was filed to the effect and there had been no dispute between the parties for the last two years and that now there is no apprehension of breach of peace. On this application no fresh report was called for from the police ; nor was any opportunity given to the objector to lead evidence in support of the denial. The impugned order indicates that the preliminary order u/s 145(1) Code of Criminal Procedure had already been passed and since a report had already been given by the police on the first objection filed by the applicants, therefore, the dispute still existed and the interest of justice required that the proceeding should be continued hence the application was rejected. In my view this was not a correct legal approach to the question. As I have said above when such an objection is raised by the parties, of the nonexistence of the apprehension of breach of peace, it must be decided by the Court after giving an opportunity to the parties to lead evidence to prove his objection. Proceedings u/s 145 Code of Criminal Procedure are not concerned with the settlement of dispute between the parties far less dispute of a civil nature. Their only concern is that the dispute regarding immovable property which raises an apprehension of breach of peace must be averted. If there is no apprehension of breach of peace, or if the apprehension existed at the time of the preliminary order, but has subsequently ceased to exist, it becomes incumbent upon the Magistrate to quash the preliminary order and to drop the proceedings u/s 145(5) Code of Criminal Procedure. In my view the procedure laid down u/s 145(5) Code of Criminal Procedure has not been followed in the instant case and the impugned order is, therefore, liable to set aside.

The argument that the impugned order is an inter-locutOry, has no legs to stand on. The question of existing of an apprehension of breach of peace is a fundamental question which gives rise to the jurisdiction of the Criminal Court to take action u/s 145 Code of Criminal Procedure. If there is no apprehension, then the Court has no jurisdiction to proceed under that section. A wrong decision on a jurisdictional question is not a mere error of taw, but an error of jurisdiction and an order erroneously deciding this question would not be an inter-locutory order, but can be termed as a final order subject to the revistonal jurisdiction of this Court.

I am aware of the fact that four witnesses have been examined in this case, and that the examination of the fifth one is proceeding. There are yet a large number of witnesses, and may be witnesses for the other side, who are to be produced. But since an objection has been taken on 6th September, 1980 that apprehension of breach of peace has ceased to exist, it has become necessary for the Magistrate to decide this question first before proceeding further with the case.

I would, however, like to sound a note of caution in this case, that there may be instances where an objection regarding the non-existence of the apprehension of breach of peace is a mala fide objection. If that is so, then the Court can not be expected to delay the decision on the merits of the proceedings, but then a finding has to be recorded to that effect. In the instant case the Magistrate has not found that the objection is frivolous or mala fide. I find from the record that after the rejection of the first application on 6th July, 1979, fourteen months have passed by. The second application was filed on 6th September, 1980. Prima facie it can not be said that the application is frivolous. The Magistrate has to enquire into it and give an opportunity to the parties to support their respective cases, by such evidence, as desired by them. No party should be allowed to un-necessarily delay or prolong the proceedings. The Magistrate, therefore, while deciding this objection will do so expeditiously without giving a long rope to any party to procrastinate the litigation.

For the reasons given above, I am satisfied that there is merit in this revision, which is hereby allowed. The impugned order passed by the Magistrate on 9th October, 1980 is set aside and he is directed to decide the objection filed by the applicants on 6th September, 1980 in accordance with law.