Gurmel Singh and ors. vs Sub Divisional Magistrate, Phul, and ors.

A. P. Chowdhri, J.—This is a petition under section 482 of the Code of Criminal procedure for quashing proceedings under section 145 and order under section 146 of the Code of Criminal Procedure (hereinafter referred to as the Code) passed by the learned Sub Divisional Magistrate, Phul. The material facts are as follows :

One Niranjan Singh died on 2911988. He left behind landed property. He was survived by Sham Kaur widow and adopted son Gurmail Singh, adopted son''s wife and son Gurmail Singh is the real nephew i.e. real brother''s son of Niranjan Singh. Niranjan Singh''s real brother i.e. real father of Gurmail Singh, namely. Bhagwan Singh his three other sons namely Gurdev Singh, Balwinder Singh and Ruldu Singh. They are respondent Nos. 2 to 4 The widow, adopted son and adopted son''s wife and son are the petitioners. After the death of Niranjan Singh, the petitioners pro pounded a registered will dated 991982 while private respondents propounded an unregistered will dated 1661987. The learned Collector rejected both the wills and entered mutation of the estate of Niranjan Singh in favour of his widow Sham Kaur, one of the petitioners herein. The private respondents filed a civil suit and on an application for temporary injunction filed by them the civil Court by order dated 25.8.1988 directed the parties to maintain status quo with regard to possession till decision of the suit. Later on the police submitted a report to the Sub Divisional Magistrate that the parties i e the petitioners and the private respondents were likely to use force and commit a breach of peace with regard to possession of land and, therefore, preventive action be taken under section 145 of the Code. The learned SubDivisional Magistrate passed order Annexure P. I on 17111988. The parties appeared, filed a statement of their claim and after about six months by order dated 2551999 the learned Sub Divisional Magistrate passed an order under section 146 (1) of the Code, Annexure P. 2, appointing receiver of the land till finalisation of the proceedings under section 145 of the Code. The petitioners have challenged both the orders under section 145 as well as under section 146 of the Code on the ground of being abuse of the process of the Court and they seek quashment of said orders.

The petition has been resisted by the private respondents and they have filed a written statement. I have heard the learned counsel for both the parties.

The first contention urged by Shri T.S. Sangha, learned counsel for the petitioners, is that the impugned order Annexure P I purporting to be under section 145 (1) does not amount to a valid preliminary order as required by law and therefore, the proceedings carried on before the Sub Divisional Magistrate including the subsequent order passed under Section 146(1) of the Code were without jurisdiction. In order to appreciate this contention, it may be stated that the police made a report to the Sub Divisional Magistrate stating that there was a dispute between party No. 1 (respondent herein) and party No. 2 (petitioners herein) over the possession of the land which was described in detail and there was apprehension of breach of peace on that account. The learned Executive Magistrate was requested to initiate proceedings under under Section 145 of the Code. On receipt of the above report, the learned Sub Divisional Magistrate after making reference to the above report in necessary detail stated that before proceeding further he would call upon on both the parties to the put in their claim on a specified date. The contention of learned counsel is that as that the learned Sub Divisional Magistrate had done was to reproduce the apprehension mentioned in the police report. In his order he nowhere indicated (a) his own satisfaction about the apprehended breach of peace; and (b) ground of his being so satisfied. The order was thus not in accordance with the requirements of subsection (1) of under Section 145 of the Code. He relied on Sardari Lal and another v. The State of Punjab and others, 1980 Crl. L.J. 1151, Karnail Singh and another v. Smt. Patto and another, 1980(77) Supp. C.L.R. 31, Jagdish v. Sawnu and others, (197577) Suppl. C.L.R. 423, Dalip Singh v. The State and others, 1973 C.L.R. 363 and Chanan Mal v. Mohri Lal, 1979 C.L.R. 170. These are all Single Bench, decisions of this Court and the line of reasoning which commended itself to the learned Judges in the above cited authorities is that the requirement of Section 145(1) of the Code is that the Magistrate shall state his satisfaction and further the grounds of his satisfaction before requiring the parties to attend his Court. Since both these conditions have not been fulfilled, the learned Magistrate had no jurisdiction.

On behalf of the private respondents Shri J.S. Randhawa, learned counsel, relied on Om Parkash and another v. Dhanpat Ram, 1979 Criminal Lat Times 204, Gurdev Singh v. The State of Punjab and others, 1975 P.L.R. 112 and AIR 1968 Supreme Court 1444. The later two authorities were relied upon and followed by S.S. Kang J. (as his Lordship then was) in the first authority cited above by the learned counsel for the private respondents. The reasoning adopted in the above authority is that if the facts were stated in the police report and those facts were sufficient to form an opinion, it would be inferred that those facts provided the reason leading to the Magistrate''s satisfaction.

After anxious consideration, it appears to me to be plain that investing the Executive Magistrate with jurisdiction what is necessary is that certain material facts should exists. It is the existence of certain necessary facts which confer jurisdiction on the Executive Magistrate. It is not the words employed by him in passing an order. There is no magic in certain words being used. The words by themselves will not invest jurisdiction where necessary facts do not exist. On the contrary, if the necessary facts exist the failure to use certain words will not oust the jurisdiction of the learned Magistrate. So what is material is the existence of certain facts. Broadly speaking, these facts are (i) that two parties have a live dispute concerning any land or water or boundries thereof within his local jurisdiction, and (ii) that the Executive Magistrate is satisfied either from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exists, the Magistrate can proceed under Section 145(1) of the Code. After indicating his satisfaction, he can call upon the parties to appear before him and submit their respective statements of claim with regard to the subject matter of the dispute. In the facts of the present case, these conditions stood satisfied. I do not think it would make any material difference if the learned Executive Magistrate had instead of repeating apprehension expressed by the police in its report had said the same thing, in slightly different words, namely, that the Magistrate was satisfied on the basis of report of the police that there was apprehension of breach of peace, The Court has to see the substance rather than form. For these reasons, the first contention of the learned counsel for the petitioners fails to impress me.

The second contention is that the order passed under section 146 (1) suffered from broadly the same infirmities with which the order passed under section 145 (1), Annexure P. I., suffered. The order Annexure P. 2 dated 25589 passed by the learned Sub Divisional Magistrate noted that arguments were heard and record of the case was perused. The conclusion reached was that breach of peace was apprehended at any time over the land in dispute and therefore, the land was attached under section 146 (1) and Tehsildar, Phul was appointed as Receiver. The case was adjourned for evidence of the parties to a certain date. For the reasons already discussed above, I am not at all impressed by the failure of the Sub Divisional Magistrate to mention that the case was one of emergency that he was unable to satisfy himself as to which of the parties was then in possession. These are matters of form and depending on the facts and circumstances of each case, no undue importance can be given to the form in which a certain order is expressed. The real jurisdictional question turns on the existence or otherwise of necessary facts conferring that jurisdiction. While not agreeing with the learned counsel for the petitioners on the grounds canvassed by him, I still find that the passing of the order under section 146 (1) of the Code in the facts and the circumstances of this case has resulted in abuse of the process of the Court In the civil suit filed by the respondents the Civil Court passed an order on 2851988 directing the parties to maintain status quo regarding possession. There is no allegation that there was any untoward incident between the parties ever since that order or even before that order. If there had been any dispute, it must have been brought on record by the aggrieved party. Since the initial report made by the police resulting in the order under section 145 of the Code, there was no further report from the police that there was any apprehension of breach of peace between the parties regarding the land. The parties appear to have accepted the order of status quo which is evident from the fact that neither party appears To have preferred an appeal against that order. There is no complaint of any breach of that order. There was no occasion, therefore for the learned Sub Divisional Magistrate to have attached the property and appoint a receiver. In my view, therefore, this is a clear abuse of the process of the Court.

For he reasons mentioned above, the petition is partly allowed. The order Annexure P 2 dated 2551989 under section 146 (1) of the Code passed by the learned Sub Divisional Magistrate Phul, is quashed. As already directed by the Civil Court. the parties shall maintain status quo with regard to possession till decision of the question under section 145 of the Code, and ultimately by the civil Court. There will be no order as to costs.