Mangru Munda and Others vs Sarwan Baraik

Kanhaiyaji, J.—The facts of this case are as follows. On the 1st July, 1967, the opposite party filed a petition before the Subdivisional Magistrate of Simdega by which he prayed that a proceeding u/s 145 of the Code of Criminal Procedure may be started. It was alleged in the petition that the petitioners were threatening that the opposite party would be assaulted if he did not give up possession of the land given in the schedule of the petition. The learned Subdivisional Magistrate passed the following order:

This is a petition filed by one Sarwan Baraik praying for action u/s 145, Cr. P. C.

Send a copy of the same to O/C Kolebira for enquiry and report through proper channel and put up on 16-7-67.

The O/C is directed to maintain peace between the parties meanwhile.

The police did not submit the report, although several dates were fixed in the case. On the 31st October, 1967, the opposite party filed another petition praying to start a proceeding u/s 144 of the Code of Criminal Procedure on the petition itself, The learned Subdivisional Magistrate passed the following order:

As the paddy is now to be harvested, the proceedings u/s 144, Cr. P. C. may be drawn up. Notice both parties to show cause as to why this order will not be made absolute against any or both of them restraining them to go over this land by 16-11-67". Both the parties appeared before the Subdivisional Magistrate and filed their show cause petitions. On the 29th December 1967, the learned Magistrate heard the parties and passed the following order:

Both parties file hazri. Heard arguments. There appears to be bona fide dispute about the possession of the lands in dispute. The dispute is, therefore, converted into one u/s 145, Cr. P. C. Issue usual notice for publication at the spot. The lands are also herewith attached. The parties to file w/s, affidavits and documents on 20-1-68.

Thereafter, the written statements and affidavits were filed, and, on the 12th June, 1968, final order was passed by the Magistrate holding that the first party, namely, the opposite party was in possession of the lands in question.

It appears that the basis of the impugned order was a bona fide dispute about the possession of the lands given in the schedule of the petition filed by the opposite party. Nowhere the learned Magistrate has observed that he was satisfied that there was an apprehension of breach of the peace between the parties. The Magistrate can only act u/s 145 of the Code of Criminal Procedure, provided he is satisfied from the police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water. In the present case, neither the orders passed by the Sub-divisional Magistrate nor anything on the record besides the application filed by the opposite party show that an apprehension of breach of the peace existed. Mere filing of a petition by one party does not give the Magistrate jurisdiction to start a proceeding u/s 145 of the Code.

It is well settled by decisions that u/s 145(1) of the Code, two things are necessary, namely, (1) that there should be a dispute relating to any land or water, and (2) that the said dispute was likely to cause a breach of the peace. A Magistrate passing an order u/s 145 of the Code of Criminal Procedure should be satisfied about the existence of both. It is necessary that the Magistrate before taking action u/s 145 of the Code should be satisfied not only with the existence of a dispute concerning some land or water but also that the dispute is likely to cause a breach of the peace,

Mr. S.S. Asghar Hussain has contended that there was satisfaction on the part of the Magistrate and written statements were, accordingly, demanded. There was an attachment order and other directions which clearly showed that there was no doubt in the mind of the Magistrate about the dispute and also of the likelihood of the breach of the peace. These facts are there no doubt; but even so, the order did not, in terms, comply with the requirements of Section 145 of the Code of Criminal Procedure which give jurisdiction to a Magistrate. Mr. Asghar Hussain relied on a decision in Bibi Asghari Khanam v. Emperor AIR 1935 Oudh 316 in support of his contention. Three learned Judges of that Court participated in the decision of the case on the point that a Magistrate cannot take action u/s 145(1), unless he is satisfied regarding the existence of a dispute likely to cause a breach of the peace. There was no disagreement between them, though as to what was sufficient to satisfy the learned Magistrate created a difference of opinion.

Mr. Nakuleshwar Prasad, learned Counsel appearing for the petitioners, relied on a decision in Abdul Sayeed Khan and Ors. v. Jagannath Nonia and Anr. 1965 BLJR 427 in support of his contention that a Magistrate can only act u/s 145 of the Code of Criminal Procedure, provided he is satisfied from the police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water. In that case, the two members of the opposite party and another person filed a petition before the Sub-divisional Magistrate of Nawadah, by which they prayed for an order directing the present petitioners not to disturb them in thrashing the crop and to allow them to take their legal share of the grains after giving due receipt for that. The police was ordered to enquire into the matter and to report. On receipt of the report on the 30th of May, 1963, proceedings u/s 144, Code of Criminal Procedure, were started against both the parties restraining them from going over the khalihan where the gathered crops were stored. Later on, these proceedings were converted into one u/s 145 of the Code and both the parties were asked to file papers to show the details of the land from which the. crops had been harvested so that their claim could be decided once for all. The punjis in question were attached and they were ordered to be put to sale by auction. There was another order saying-"Start proceeding''s on the basis of the schedule of land given by the 1st party as I am satisfied that there is apprehension of breach of peace between both the parties. Let the parties file W. S., affidavits and other things in support of their claim of possession." Thereafter, written statements and affidavits were filed and on the 26th of September, 1963, final orders were passed by the Magistrate holding that the first party were in possession of the lands in question. It was held that neither the order passed nor anything on the record disclosed the source of any such information to give satisfaction to the Magistrate as to the existence of an apprehension of breach of peace. Mere filing of a schedule of lands by one party does not give the Magistrate jurisdiction to start proceeding u/s 145 of the Code. It was also held that the entire proceedings had been vitiated by lack of jurisdiction which was assumed wrongly by the Magistrate.

In the present case, not only that there was no police report, but there was no material on the record upon which the Magistrate could pass an order for starting a proceeding u/s 145(1) of the Code. It appears from the order passed on the 29th December, 1967, that the learned Magistrate, after hearing the parties, was only satisfied that there was a bona fide dispute about the possession of the lands in dispute. The learned Magistrate had not thus a good reason for exercising his emergency powers. In these circumstances, the non-passing of an order u/s 145(1) of the Code was not merely a formal defect, but it went to the root of the jurisdiction. Therefore, it must be held that the entire proceedings, taken by him, were without jurisdiction. There can, therefore, be no doubt that the order passed by the learned Magistrate should be set aside.

In this view of the matter, it is not necessary for me to deal with the relative merits of the claims set forth by the parties.

For all the reasons given above, the order of the Magistrate dated the 12th June, 1968, is set aside.