Nathi Lal vs Sunil Kumar Singh and Another

M. Wahajuddin, J.—The applicant has come forward with a prayer that the preliminary order dated 6-2-1982 of the Magistrate u/s 145 Code of Criminal Procedure (Annexure I), the order of the Magistrate u/s 146 Sub-clause (1) of the same date (Annexure II) and the other order dated 20-3-82 of the Magistrate (Annexure VI) be all quashed. The order annexure VI is an order rejecting the prayer of the applicant that the proceedings cannot continue. Objections were two fold. Firstly that a civil suit was instituted prior to the proceedings u/s 145 Code of Criminal Procedure and in that suit an order favourable to the applicant was passed, and proceedings under Sections 145 and 146 Code of Criminal Procedure could not continue. So far as that contention is concerned, the law is now well settled that proceedings u/s 145 Code of Criminal Procedure are independent proceedings and any civil proceeding pending or decided does not stand in its way. The case of Kalap Din v. State 1970 AWR 410, Jafar Husain v. State 1969 AWR 199, Mst. Hosanki v. State 1955 AWR 654 are authorities on the point. The view taken in these pronouncements finds support from the Supreme Court observations in the case of R.A. Bhutani v. Miss Mani 1969 AWR 59.

I may now proceed to consider whether the preliminary order passed in this case itself is bad and thereby vitiate the entire proceedings u/s 145 Code of Criminal Procedure. The preliminary order is Annexure I. The Magistrate has recited in that order that he has perused the police report dated 4-2-1982 and from the same he is satisfied that on a dispute concerning 125 sq. yds of land on the beach of factory on which Nathi Lai and others have opened a door, made an enclosure by wall there is apprehension of breach of peace between the parties. The order further recited that the parties are directed to file their claims before the Magistrate. The order Annexure II passed on the same date is to the effect that the Magistrate has perused that report dated 4-2-82 of police station Rakabganj and has satisfied that on a piece of land 125 sq. yds. Nathi Lai has opened a door on the back wall and has taken possession, while Pushpa Sharma has also opened a door in that direction and on a dispute centering round the same apprehension of breach of peace exists and it is, therefore, directed that the land in question be attached. The police report of police Station Rakabganj is Annexure I of the supplementary affidavit. It states that there was no door earlier towards the land in the back of the factory of Nathi Lai opposite party. But Nathi Lai has opened a door in the back wall of the factory and has enclosed 125 Sq. Yds. of land only two days prior to the report. While the first party Sunil Kumar has documents in support of his claims to the land the other side did not produce any such document. Centering round the dispute-in question there is tension between the parties and there is apprehension of breach of peace. It is also mentioned that following Nathi Lai applicant Smt. Pushpa Sharma, the present Opposite Party No. 2 has also opened a door towards the land in dispute and is trying to enclose it. It is further stated that the police is giving this report for initiating proceedings under Sections 145 and 146 Code of Criminal Procedure.

The parties have filed affidavits, supplementary affidavit and counter affidavit. This Court will not consider the merits of the claim as such nor would it enter into questions of facts. The crux of the matter, therefore, is whether the preliminary order is defective. It cannot admit of any dispute that the Magistrate derived its jurisdiction from the preliminary order and the preliminary order, therefore, goes to the root of the case. It is also a well settled law that the maintenance of law and order and prevention of breach of peace is primarily a duty concerned with the Magistrate and it is the subjective satisfaction of the Magistrate as such which is paramount. The matter is thus to be approached keeping these two well settled propositions of law in mind.

The learned Counsel for the applicant has relied upon the case of Bisse Gowda and Others Vs. State of Mysore and Others, . In that case the Magistrate had stated in his preliminary order that he was satisfied from the police report that a dispute was likely to cause breach of peace. The dispute centred round harvesting of tamarind fruits. The Mysore High Court held that the Magistrate should state the ground of his being so satisfied and mere stating that he was satisfied from the police report is not enough and consequently interference in revision can be made. Reliance has been further placed upon the case of Sardari Lal and Another Vs. The State of Punjab and Others, , a single Judge pronouncement of Punjab and Haryana High Court. In that case also it was held that Magistrate must also record ground of his being so satisfied and mere adopting of the suggestion of the police is not sufficient. In neither of these two cases the pronouncement of the Supreme Court in the case of R.A. Bhutani v. Miss Mani (supra) on that matter was considered. Following observations made by the Supreme Court are important:

The language of the Sub-section 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 sufficiency of material which has satisfied the Magistrate.

The law laid down in the Supreme Court is that the superior court should not go into the question of sufficiency of the material which has satisfied the Magistrate. The Sub-section itself says that where an Executive Magistrate is satisfied from a report of the police officer or upon other information is satisfied, use of word ''or'' is important and would clearly indicate that the Magistrate can be satisfied from the police report or from any other information or both. So the crux of the matter is whether the police report constituted sufficient material for satisfying the Magistrate. The police report is Annexure I and I have perused it. It does indicate all the facts concerning the dispute as well as concerning the existence of apprehension of breach of peace. I have also laid down the order of the Magistrate in which after referring to the police report he has stated clearly that he is satisfied about the apprehension of breach of peace centering round a dispute regarding possession ever 125 sq. yds of the land between the parties and he has also fully specified that land. When that is the position and it is always the question of the Magistrate''s satisfaction the order cannot be said to be bad nor this Court will enter into the question of sufficiency of materials as such. I may also mention that the Mysore view that interference can be made in revision is contrary to the Supreme Court view in the aforesaid case of Bhutani. I must follow the Supreme Court view and on a perusal and scrutiny of the preliminary order I find that the Magistrate has exercised his mind to come to his subjective satisfaction. Any form in which the preliminary order should be written cannot be prescribed or laid down. One has simply to look the substance of the order to ascertain whether the preliminary order is based upon subjective satisfaction of the Magistrate after exercising his mind. In the present case it is so and I do not find any force in "the contention of the applicant''s Counsel. The application is rejected.