Ganga Bishun Singh vs Rajo Chaudhuri

Kulwant Sahay, J.—This is an application in revision by the second party in a proceeding u/s 145 of the Cr.P.C. The dispute relates to a plot of land bearing survey Plot No. 112 in village Bishunpore Harihar, thana Baruraj. The first party appears to have purchased a portion of this plot, and the second party has taken a mortgage of the remaining portion of the, said plot, and the dispute is as regards the portion which the second party says is included within his mortgage while the first party claims it to be included within his deed of sale. The learned Deputy Magistrate has found that the first party is in possession of the disputed land and he has made an order, u/s 145, in his favour.

Upon the finding which is based on a consideration of the evidence in the case there is no ground for interference with the order of the learned Deputy Magistrate. The point, however, taken by the learned Counsel for the petitioner is that in the proceeding drawn up u/s 145 by the learned Magistrate it is recited that he was satisfied about the likelihood of a breach of the peace from the report of the police, dated the 13th February, 1923, and the petition filed by Ganga Bishun Singh, second party, on 27th March, 1923, and as neither of these two documents shows that there was a likelihood of the breach of the peace, the learned Magistrate had no jurisdiction to initiate the proceeding u/s 145 of the Criminal Procedure Code.

What happened was this. On the 20th of January, 1923, the first party filed an application before the learned Deputy Magistrate wherein he set out toe fact of his purchase of a portion of Plot No. 112 under a deed of sale, dated the 11th January, 1922, and he alleged that; he had grown crops on the ten kathas of land in dispute which has been forcibly cut and taken away by the second party upon which a complaint had been lodged before the police but the police had taken no action thereupon and that when the petitioner wanted to cultivate the said land again the Opposite Party had raised objection and there was a likelihood of the breach of the peace and he prayed for proceedings u/s 144 of the Criminal Procedure Code. The learned Magistrate thereupon made an order upon the police to enquire and report u/s 144. The police submitted a report on the 13th February, 1923, in which it was stated that the second party had been in possession of the land in dispute and that the first party was trying to take possession thereof, that the dispute was purely of civil nature and that there appeared to be no likelihood of a breach of the peace. The learned Magistrate received this report on the 22nd of February, 1923, and on that day he ordered the production of documentary evidence. Documents were produced before him on the 9th of March and on the 10th of March he considered the evidence and came to the conclusion that the second party had prima facie no right to the land in dispute and ordered issue of notice u/s 144, Cr.P.C., forbidding him from interfering with the cultivation of the land" by the first party and requiring the second party to show cause by the 26th of March, 1923. On the 27th of March, 1923, the second party who is the petitioner in this Court filed a petition before him in which he alleged that the land in dispute was in his possession and that he was in peaceful cultivation of the said land and that the first party wanted to take illegal possession thereof. He, however, stated in para. 2 of the petition that there was absolutely no apprehension of any breach of the peace with respect to Plot No. 112. The learned Deputy Magistrate heard the parties and he was of opinion that as the title deeds were not clear the question of possession ought to be determined. He therefore cancelled the proceedings u/s 144, and ordered that proceedings u/s 145 to be drawn up in which it was stated that the Magistrate was satisfied of the likelihood of a breach of the peace from the report of the police, dated 13th February, 1923, and the petition filed by the second party on the 27th of March, 1923, mentioned above. No doubt the two documents mentioned in the proceedings as drawn up by the learned Deputy Magistrate stated that there was no likelihood of a breach of the peace, but it was for the Magistrate to come to a decision as to whether there was or was not a likelihood of a breach of the peace. The Magistrate, in order to assume jurisdiction u/s 145, had to satisfy himself about the likelihood of the breach of a peace. He was to exercise his own judgment upon the materials placed before him, and to arrive at a conclusion as to whether upon the materials placed before him there was a likelihood of a breach of the peace. Ha would not be justified in acting merely upon the expression of an opinion by the police, and if by exercising his own independent judgment he came to the conclusion that there was a likelihood of the breach of the peace from the facts stated above it is clear that there was sufficient material before the learned Deputy Magistrate when he passed his order in the order-sheet on the 27th of March, 1923, directing that proceedings u/s 145 be drawn up. If in the proceeding so drawn up in the office a reference is made to the police report: and to the petition of the second party, dated the 27th March, 1923, which documents stated that there was no likelihood of a breach of the peace that will not by itself take away the jurisdiction of the Magistrate to initiate proceedings u/s 145, if he was satisfied that there was a likelihood of a breach of the peace see the observations of Rampini and Mookerjee, JJ., in the case of Kulada Kinkar Roy v. Danesh Mir (1905) 33 Cal. 33. Reference has been made by the Counsel for the petitioner to the case of Ramsarup Chowdhury v. Darsan Kuer (1920) 1 P.L.T. 387 where Mr. Justice Sultan Ahmed set aside a proceeding u/s 145, Cr.P.C., on the ground that it was founded upon a police report in which there was nothing to suggest that there was an apprehension of a breach of the peace, The learned Judge there observed that the Magistrate having drawn up the proceeding upon the report of the Inspector of police he would decline to refer to earlier reports of certain other police officers so show that there was likelihood of a breach of the peace. However, as was observed by Mr. Justice Mitter in the case of Maharaj Bahadur Singh v. Raja Ranjit Singh 11 C.W.N. 835 each case must be judged on its own merits. Here although the proceeding drawn up was based on the police report there were other materials before the Magistrate upon which he was satisfied about the likelihood of the breach of the peace and in fact the report itself does contain sufficient materials to enable the Magistrate to form his own opinion about the existence of a likelihood of a breach of the peace. Therefore although the police might have reported that in their opinion there was no likelihood of a breach of the peace the Magistrate on considering the report was entitled to coma to a different conclusion of his own to initiate proceedings if he thought it necessary to do so. The ground taken by the learned Counsel for the petitioner fails. This application must therefore be dismissed.