Jagan Nath and Others vs Hem Raj

A.M. Mir, J.—This is criminal reference made by the Sessions Judge Kathua vide his order dated 30-7-1997 whereunder a

recommendation has been made to quash the order passed by A.D.M. Kathua on 19-10-1993 by virtue of which the proceedings in terms of

Section 145, Cr. P.C. (hereinafter called the Code) are sought to be dropped and paddy crop which was standing on the land was released in

favour of respondent No. 1.

I have gone through the order of reference and also the impugned Order I agree with the conclusions drawn by the learned Sessions Judge and

hold that the order passed by the trial Magistrate is bad in law. I confirm the order of reference to the extent the matter is sought to be remitted

back to the Court of A.D.M. Kathua for fresh inquiry. I, however, find the reasoning of the learned Sessions Judge not exhaustive and lucid. It at

some points confused issues. I have the following reasoning to support the Session Judge's order :-

(1) The question of imminent danger of breach of peace is a gate pass for a Magistrate to enter into the arena of judicial power exercisable under

this Section. Existence of such danger of breach of peace is a'sine-qua-non for attracting a Magistrate's jurisdiction. Once that jurisdiction is

exercised and preliminary order passed, what remains to be decided is as to which of the party was in possession on or around two months of the

date of the order.

At the time of passing of the preliminary order the Magistrate must be satisfied in respect of three things; Firstly that a dispute exists; second that

such dispute is likely to cause breach of peace; and third; that the dispute must concern any land or water or the boundaries thereof, within the

local limits of his jurisdiction. Exist-tnce of such a dispute at the initial stage is qualified by the condition that such a dispute must necessarily lead to

an imminent danger of breach of peace. Once the Magistrate is satisfied of the above mentioned three conditions, he shall pass a preliminary Order

Passing of the preliminary order gives him jurisdiction to exercise his powers in terms of Section 145. It shall at the same time be noted that such

satisfaction can be derived by the Magistrate either from a police report or from other information. Here in the present case the trial Magistrate in

his order dated 19-10-1993 has recorded his satisfaction with regard to existence of a dispute which is capable of giving rise to imminent danger

of breach of peace. He draws up the preliminary order and also passed an order of attachment. Thereafter the parties lead sufficient evidence by

placing on record different documents and swear in sump-teen affidavits with respect to their claim of possession. The trial Magistrate proceeds to

pass an order in the name of a final order on 6-5-1994, the relevant portion of the same is reproduced as under :-

So I do not find the dispute of such a nature which is likely to cause any breach of peace. The case, therefore, is not maintainable. Accordingly I

dismiss it and attachment order of padc!y crop issued earlier be treated as withdrawn with immediate effect and the possession as well as paddy

crop be restored in favour of respondent No. 1. The file be consigned to records after completing usual formalities required under Rules.

The purpose of reproducing the relevant portion of the order dated 6-5-1994 is to show that by virtue of this order he has only tried to satisfy

himself again as to whether or not any dispute existed which was likely to cause breach of peace. He has landed himself into a grave conceptual

error by coming to the same point wherefrom he had started his journey. The result being that the intervening exercise of the parties to prove their

case has been rendered infructuous.

After passing of the preliminary order the direct question which is required to be answered is as to which of the parties before him was in

possession of the property on the date of preliminary order or two months before that. In determining this question the Magistrate has not to go to

the right of any of the party to be in possession. This is so because rights are to be determined by a Civil Court and inquiry required to be made in

terms of Section 145(4) of the Code is to be concluded on basis of statements, documents and affidavits only. So what is sufficiently obvious is

that the only finding which is required to be returned by the Magistrate is with regard to actual physical possession of the subject matter of the

application on the relevant date. He has on the other hand no power to return a finding with regard to existence or non-existence of an imminent

danger of breach of peace, after passing of the preliminary order because he has already recorded his satisfaction. This is the general rule of law.

Sub-Section (5) of Section 145 forms an exception to the general Rule It empowers the parties to the proceedings or any other person

interested to come before the Court and show that no such dispute exists or existed. On such showing the Magistrate shall cancel his order and

stay further proceedings.

In the present case no body has come to the Magistrate to show that the dispute did not exist. Parties have vehemently contested the claims and

still the Magistrate passes order dated 6-5-1994. He tried to rely upon a spot inspection note of his predecessor in office dated 29-4-1993.

Accoding to this report Assistant Commissioner had visited the spot on 4-1-1993 and had found that the possession of the land was with Hem Raj

S/O Rikhi Ram. According to the Assistant of Commissioner 'Abyana' in respect of the land was also being paid by some Hem Raj. Respondent

No. 1 etc. The finding of the Magistrate dated 6-5-1994 is exclusively based on the spot inspection report. This is an illegality committed by the

Magistrate. Section 145 leaves no room for a spot inspection. It with all possible exactitude lays down as to on what basis the satisfaction of the

Magistrate can be recorded. Spot inspection reveals personal knowledge of the Magistrate and personal knowledge has no role to play in

determining the factum of possession.

The mandate of law is that documents, affidavit and statements are to be perused and critically examined and then a finding with respect, to

possession is to be returned on basis of such examination. Numberless are the affidavits and documents placed before the Magistrate by the

parties but he has not even made a whisper about any of them. He has on the other hand relied upon spot inspection note of his predecessor. By

doing so he has fallen into an error.

With this reasoning, the order of reference is confirmed. The trial Magistrate's order is quashed. The Magistrate is directed to pass fresh orders

under law. Meanwhile the attachment order passed earlier by him shall continue to remain in force.