Nepal Singh vs Ram Chander and Another

M. Wahajuddin, J.—The Magistrate passed a preliminary order u/s 145(1) Code of Criminal Procedure initiating proceedings u/s 145. He later also made attachment. Ultimately proceeding was decided in favour of the present revisionist holding him to be in possession. The opposite party went up in revision. The revisional court held that the very preliminary order is bad as the police report does not show any apprehension of breach of peace. The revision was therefore, allowed and the order of the Magistrate was set aside and the proceedings u/s 145 Code of Criminal Procedure was dismissed. The applicant feeling aggrieved from such order of the first revisional court preferred this second revision before this Court.

I have given ray anxious considerations to the arguments advanced. On every dispute concerning any Immovable property proceedings u/s 145 Code of Criminal Procedure cannot be initiated because ordinarily such disputes are to be resolved by the civil or revenue court. The Magistrate''s jurisdiction comes into play where there is an apprehension of breach of peace centring round dispute over possession of Immovable property. The foundation of the jurisdiction of the Magistrate is preliminary order. The preliminary order must record satisfaction concerning apprehension of breach of peace centering round the dispute of possession over immovable property and such satisfaction should also refer to the material upon which it is based. The opening sentence of Section 145(1) Code of Criminal Procedure is vital and goes to the root. I may quote that part:

Wherever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exits.....

It is clear that the satisfaction of the Magistrate concerning apprehension of breach of peace must be based upon some information received including a police report. Obviously when that is the position the order based on any conjecture cannot be passed. The order should be based upon materials. Of course, as it is a question of subjective satisfaction the Court will not look into the adequacy of such material but material showing apprehension of breach of peace must be there because that is the vital source for deriving jurisdiction and if it is not there and the preliminary order is without jurisdiction the entire subsequent proceedings will be without jurisdiction and consequently a nullity. I have gone through the police report dated 29-12-1977 paper No. A 3. It simply narrates the dispute between certain parties concerning possession of land. As observed earlier mere dispute of title or possession will not attract Section 145 Code of Criminal Procedure. The other ingredient, namely apprehension of breach of peace should also co-exist. The police in the entire report has not said a word that there is any such apprehension of breach of peace. Its mere advice that proceedings u/s 145 Code of Criminal Procedure be initiated is meaningless. Whether a proceeding will be initiated or not is the function of the Magistrate based on his satisfaction. The police has to report concerning facts and the police report is completely silent on the point that there existed any apprehension of breach of peace. It is noteworthy that the Magistrate has not referred to any material or information. He has referred to the very police report for his satisfaction while that report did not contain any such thing upon which a subjective satisfaction concerning apprehension of breach of peace could be based. Even if later materials are brought before the court concerning such apprehension that would not cure the illegality because jurisdiction is derived from the preliminary order itself and when preliminary order itself is bad the entire subsequent proceedings will be without jurisdiction. The first revisional court has therefore rightly set aside the judgment of the Magistrate and was justified in dismissing the case u/s 145 Code of Criminal Procedure and this second revision has no force and it also fails and dismissed. But before parting with this case I may observe that it is always open to pass any proper preliminary order afresh if any materials are brought to the notice of the Magistrate making out the ingredients for passing the order u/s 145(1) Code of Criminal Procedure and the Magistrate will be at liberty and this judgment would not bar any fresh proceeding according to law.