Krishan Lal and ors vs Jai Dev and ors.

S.S. Dewan, J.

This revision arises out of the proceedings under is. 145, Criminal Procedure Code, 1973 (for short, the Code). It would appear that on July 28, 1982, the Police of Police, Station Pundri submitted a Kalandra against Janak Singh and Jai Dev etc. as the first party and Wasanda Ram etc. as the second party, alleging therein that the first party Janak Singh etc. were in possession of the land in dispute and the second party Wasanda Ram etc. wanted to occupy the said land forcibly. It was prayed that proceeding under S. 145 of the Code be initiated against both the parties failing which there was an apprehension of breach of peace. On September, 30, 1982, the Executive Magistrate, Kaithal, passed the usual order under S. 145(1) of the Code, stating that there was imminent danger of breach of peace over the land in dispute and consequently exercising his power under S. 146(1) of the Code attached the property in dispute and appointed Tehsildar, Kaithal as a receiver thereof. Janak Singh etc., first party, went in revision before the Court of Sessions and the learned Additional Sessions Judge, Kurukshetra set aside the order of a attachment passed by the Executive Magistrate, Kaithal, with the following observations :

"There was no case made out for attaching the disputed land, on the ground that it was a case of emergency. Thus, there was no material before the Executive Magistrate to order the attachment of the land in question. Even otherwise, the learned Executive Magistrate has nowhere mentioned that he considers the case to be one of emergency and in the absence of such finding, the learned Magistrate could not have ordered the attachment of the land in dispute. The only observation made by the learned Magistrate in the order dated 30.9.82 while ordering the attachment of the land in question, is that there was an apprehension of breach of peace regarding the possession over the said land and parties may quarrel at any time and as such, the order of attachment was being passed."

The opposite party, aggrieved with the said order, has filed the revision in this Court. The learned counsel appearing on their behalf has argued that the learned Additional Sessions Judge has based his impugned order on conjectures and surmises, without properly appreciating the facts of the case that the observation that the Executive Magistrate has nowhere mentioned in his order that he considers the case as one of emergency and that in the absence of any such an finding, the learned Magistrate has ordered the attachment of the land in dispute, is factually wrong. It is contended that a bare, persual of the order passed by the Executive Magistrate would show that there was an imminent danger of breach of peace and, therefore, the order of attachment of the land in dispute was passed. On the other hand the learned counsel for the respondents contended that there was no material before the Executive Magistrate for coming to the conclusion that there was any apprehension of breach of the peace. I find myself unable to accept this argument. The preliminary order issued by the Executive Magistrate in this case begins with the words :

"The counsel for the parties present. They have been heard and file perused from which it has found that there is imminent danger of breach of peace over the land in dispute and at any time a dispute can take place between the parties... and there should he no dispute between the parties for the possession of the land in dispute, I attach the land in dispute under section, 146. Criminal Procedure.

A reference to Ss. 145 and 146 of the Code makes it clear that it is the satisfaction of the magistrate which counts under the said sections. The question whether there was sufficient material for trial Court to come to the conclusion that there was danger of breach of peace, is not for the revisional Court to determine. It is for the Magistrate concerned to come to the conclusion on the material before him whether such a dispute exists. However scanty the material might be, the trial Court is the proper forum for the purpose of determining this fact. I am accordingly of the opinion that this question should not have been allowed to be agitated by the Additional Sessions Judge. This point now stands concluded by a Supreme Court decision in R.H. Bhutani v. Miss Mani J. Desai & Ors. 1968 CAR 223 (SC) wherein it has been observed in the following terms :

"The satisfaction under subsection (1) is of the Magistrate The question whether on the materials before him he should initiate proceeding or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction The language of the subsection is clear and unambiguous that he can arrive at his satisfaction both from the police report or ''from other information, which must include an application by the party dispossessed. The High Court in the exercise of its revisional jurisdiction, would not go ''into the question of material which has satisfied the Magistrate.'' The question is whether the preliminary order passed by the Magistrate was in breach of section 145(1). that is, in the absence of either of the two conditions precedent one of the grounds on which the High Court interfered was that the Magistrate failed to record in his preliminary order the reasons for his satisfaction. The section, no doubt, requires him to record reasons. The Magistrate has expressed his satisfaction on the basis of the facts set out in the application before him and after he had examined the, appellant on oath. That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction."

Applying the aforesaid principle, the order of the Executive Magistrate dated September 30, 1982, in the present case and the proceedings consequent thereto are unassailable.

During the course of arguments, Mr. J. K.. Sharma learned counsel for the opposite party opposed the maintainability of this revision on the ground that the impugned order passed by the learned Additional Sessions Judge is an interlocutory order in the proceedings and S. 397 (2) of the Code bars a revision against such an order. To buttress this argument, reliance. was placed on a decision in Kartar Singh and others v. Smt. Pritam Kaur and another, 1984(1) RCR(Crl.) 617 (P&H) : 1984 CRI L J. 248 . The argument seems to be misconceived. The learned Additional Sessions Judge accepted the revision petition filed by the opposite party and upset the order of attachment passed by the Executive Magistrate and his order being final, cannot be termed as interlocutory and the revision filed by the petitioners against his order is not barred. It is needless to refer to the said decision because the facts and circumstances of that case are clearly distinguishable and the ratio thereof is not at all applicable able to the facts and circumstances of this case.

The result is that this revision petition succeeds and is hereby allowed. The order passed by the learned Additional Sessions Judge on March 15, 1983 is set aside. The parties, through their counsel, are directed to appear before the Executive Magistrate, Kaithal. on June 7, 1984, and he shall take. up the matter with expedition. The lower Court record be sent immediately.