Gappa and others vs Surjan

H.R. Sodhi, J.—A recommendation has been made by the Additional Sessions Judge, Karnal that the revision petition preferred by Gappa and others against whom an order was passed by the Executive Magistrate 1st Class, Karnal, on 30th December, 1957, u/s 145, Criminal Procedure Code, be accepted and the impugned order of the Executive Magistrate quashed.

Facts are not in controversy so far as the present revision petition is concerned Surjan, a Harijan, resident of village Staudi within the jurisdiction of Police Station Saddar, Karnal, made an application u/s 145, Criminal Procedure Code, on 6th October, 1965 on the allegation that he was in possession of a certain vacant plot of land lying in front of his house for more than thirty years and the same was being used for tethering his cattle and dumping rubbish. It was stated by him that he had raised some construction on that plot but Gappa and others now Petitioners wanted to forcibly dispossess him from that plot of land as a result whereof there was apprehension of breach of the peace. The Sub Divisional Magistrate to whom the application was put up on 7th October, 1905, passed a very brief and criptic order in the following terms:-

Order u/s 145(1) to be issued and notice be given to the other party, according to the provisions of Section 145, Criminal procedure Code, to appear on 21st October, 1965.

Sd/-

S D.M.

Karnal.

7th October, 1965

The parties filed their respective claims and in support thereof produced affidavits. There were affidavits of twelve persons on behalf of the Petitioners and it was stated there in that the Petitioner was in possession of the disputed land for over thrity years and had been tethering his callte etc. These averments were denied in the affidavits produced by Gappa and others and it was asserted that Surjan had no right or title in the disputed plot of land nor was he ever in possession of the same. The Sub-Divisional Magistrate on a perusal of the documents found himself unable to give a decision as to which of the parties was in possession for a period of two months preceding 7th October, 1965 when the preliminary order was passed. He proceeded u/s 146(1) ofthe Code of Criminal Procedure by drawing up a statement of facts and forwarding the record of the proceedings to the competent civil Court to decide the question as to which of the parties was in possession of the disputed plot on the date of the preliminary order, that is, 7th October, 1965.

The Subordinate Judge, Karnal, recorded the evidence led by both the parties and decided the question of possession in favour of Surjan. It was held by him that Surjan had been in possession of the suit land on the relevant date and two months prior to that. The Sub Divisional Magistrate on receipt of the decision of the Subordinate Judge simply agreed with the same and declared the Petitioner to be in possession of the site in dispute on 7th October, 1965, and two months before that. He directed that Surjan would remain in possession until evicted in due course of law. The Sub Divisional Magistrate neither in his preliminary order of 7th October, 1965, nor in the subsequent order passed on 30th December, 1967, ever stated that he was satisfied on the information received by him that a dispute likely to cause breach of the peace existed, concerning the site in dispute. A revision petition filed by the opposite party, namely, Gappa and others, has, thus, been recommended by the Additional District Judge on the ground that the Sub Divisional Magistrate did not give any specific finding regarding the question of breach of the peace and, therefore, his order could not be maintained.

There can be no manner of doubt that in proceedings u/s 145, Criminal Procedure Code, which are more in the nature of police action, the mam object is to prevent breach of the peace, and unless there is likelihood of any such breach a Magistrate has no jurisdiction to take any action under the said provision of law, or the subsequent sections contained in Chapter 12 of the Criminal Procedure Code. The Magistrate is not called upon only to declare as to which of the parties was in possession of the disputed property on the date of the passing of the preliminary order. He must, before passing the preliminary order u/s 145(1), Criminal Procedure Code, apply his mind to the facts and circumstances as brought to his notice and give a definite finding that he prima facie was satisfied that a dispute likely to cause breach of the peace existed concerning the property in dispute. He must also, after perusal of the statements, documents and affidavits, if any and hearing the parties, affirm the same finding after the parties have submitted their claims with regard to the right to possess the subject matter of dispute. Even if he was initially satisfied at the time of passing of the preliminary order that there was a reasonable apprehension of the likelihood of breach of the peace but at the conclusion of the inquiry be found that there was no such danger, it is open to him to drop the proceedings and cancel the preliminary order. The satisfaction which arose at the time of passing the preliminary order must, therefore, continue till the Magistrate passes the final order. In the instant case, the Executive Magistrate, at no stage, seems to have applied his mind to the important question relating to the breach of the peace and given any finding with regard thereto.

6 Mr. Y.P. Gandhi, learned Counsel for the Respondent, vehemently opposed the recommendation and submitted that it was implied in the priliminary order of 7th October, 1965, passed by the Sub-Divisional Magistrate, that there was likelihood of breach of the peace. I am afraid this contention cannot be accepted There must be a clear finding by the Magistrate to this effect and no question of any finding being implied crises.

The recommendation of the Additional District Judge is accordingly accepted, order of the Sub-Divisional Magistrate as passed by him on 30th December, 1967, set aside and the latter is directed to properly decide the question of likelihood of breach of the peace between the parties. Proceedings u/s 145, Criminal Procedure Code, were started as early as 1965 and four years have by now passed. The Magistrate must, therefore, dispose of the matter within three months.