Palani Goundan vs Kulandaivelu Goundan and Others

Venkatasubba Rao, J.—At the instance of the petitioner the Joint Magistrate of Dindigal passed a preliminary order u/s 145, Criminal

Procedure Code on the 10th January 1922. This was preceded by an order of attachment under Sub-section 4 dated the 5th January. The parties

were directed to tile written statements which were filed on the 1st February 1922 and the Magistrate on the same date made an order refusing to

proceed with the enquiry u/s 145 on the ground that some proceedings haft already been taken u/s 144. The Magistrate says: ""It is true that the

order passed u/s 141 Criminal Procedure Code, by the Sub-Magistrate has now ceased to be in force and that the Sub-Magistrate had no

jurisdiction under that section to give a decision as to who on a given date was in possession of the land. But on further consideration of the

circumstances, which were not all before me when I passed my first order ex parte, I do not think that it is necessary now to take action as prayed

for. I therefore dismiss the petition asking for action u/s 145, Criminal Procedure Code. The finding of the Sub-Magistrate was upheld on appeal

by this Court and I see no reason to take it up again."" He again observes ""the claims of the parties should be settled by a Civil Court and I do not

consider that it is necessary to enter into the question of possession here"". What apparently happened was this. On the 25th July 1921 the Sub-

Magistrate of Palni made an order which purported to be an order u/s 144 which is said to be favourable to the counter-petitioners. That order

was upheld on appeal by the Sub-Divisional Magistrate on the 10th September 1921. The Joint Magistrate thinks that in view of these orders it

would be unnecessary to take any further proceedings.

It has been contended on behalf of the petitioner that the Magistrate had no jurisdiction to make the order in question. Having initiated the

proceedings it was open to the Magistrate to make an order under Sub-section 5; that is to say, if he was satisfied that no dispute of the nature

mentioned in the section existed he could cancel the preliminary order made on the 10th January 1922. It was also open to the Magistrate to find

who was in possession of the subject matter and issue an order under Sub-section 6 of Section 145. A third course was still open to him namely,

to attach the property u/s 146. It is obvious that the Magistrate has pursued none of these three courses, and the order that he passed is not

justified by the directions contained either in Section 145 or in Section 146.

Mr. Richmond, who supports the order, has argued that it contains, in effect, a finding that there was no apprehension of a breach of the peace.

I have carefully read the order and I am unable to accept this contention. The Magistrate merely states that as proceedings were previously taken

u/s 144 and incidentally in the course of those proceedings it was found that the counter-petitioner were in possession of the property, it is not

desirable to proceed with the enquiry u/s 145. The order of the Magistrate clearly contravenes the provisions of the Criminal Procedure Code.

The next question that arises is Can the High Court in the exercise of its revisional powers interfere with an order of this nature? There seems to

be ample authority for the proposition that it can. In Sreeman Kumara Tirumalaraja Bahadur, Rajah of Kravetnagar v. Sowcar Lodd Goviud Doss

Krishna Doss 16 M.L.J. 419 Davies and Moore, JJ. held that the Magistrate''s refusal to receive evidence gave the Court no option but to declare

that the order u/s 545 was passed without jurisdiction, and on that ground they set aside the order. I may observe that in the present case no

evidence was taken and no enquiry was held before the so-called final order was made by the Magistrate. In Velayuda Kone v. Narayana Kone

(1915) 2 L.W. 1208, the High Court interfered on the ground that the Magistrate refused to hold an enquiry and gave it as his reason for the

refusal, that a prior application was dropped by another Magistrate. In In Re: Dyawappa Basgunda Patil, the Magistrate merely made an order

that the applicant was not to obstruct and one of the learned Judges observes ""Where, as here, all the most essential things that go to the making of

the order were absent, I can only say that I regard the order made as not a final order under the section"". As regards the duty of the Magistrate the

following observations were made. ""The position, therefore, stands thus: if there is still a danger of a breach of the peace, the Magistrate must

complete the proceedings as required by Section 145 and make a proper order either under that section or u/s 146. If however there is no longer

any danger of a breach of the peace, the proceedings may be dropped"". The next case that has been cited by Mr. Vaz for the petitioner is Juthan

Singh v. Ram Narain Singh (1914) 18 C.W.N. 700. In a proceeding u/s 145 Criminal Procedure Code no witness was examined on either side

but the Magistrate decided the case on the documents file before him, the latest of those documents dating back to about ten years before the date

of the proceedings, It was held that the order made by the Magistrate was without jurisdiction. The learned Judges set aside the order and directed

that, if necessary, fresh proceedings should be taken according to law.

The cases cited by Mr. Richmond on behalf of the counter-petitioners do not lay down a different rule. In Manindra Chandra Nandi v. Barada

Kanta Chowdhury ILR (1903) C. 112, it was held that a Magistrate has jurisdiction to cancel an order passed under Sub-section 1 of Section

145 and to stay proceedings if he becomes satisfied, whatever the source of his information may be, that the. state of things does not exist, which

alone would give jurisdiction to proceed with the enquiry. I may observe that the Magistrate in that case gave a finding that there was no

apprehension of a breach of the peace. It was argued that it was not open to the Magistrate to cancel an order made under Sub-section 1 unless

one of the parties or some other person interested had shown that the supposed dispute did not exist or had not existed. The learned Judges

refused to recognize any such limitation on the power of the Magistrate to stay his hand. In regard to the power of the High Court to interfere with

orders u/s 145, the learned Judges accept the correctness of the r reposition that if an order was challenged to be without jurisdiction that is to say,

if it be outside the section, the mere fact of its purporting to be so passed would not bring it within the section so as to debar the exercise of the

revisional powers of the High Court to set it aside. This case therefore does not assist the counter-petitioner.

Kamulammal Avargal v. Vavu Rowther 4 L.W. 57, only decides that a Magistrate could decline to proceed with the enquiry on being satisfied

that there was no apprehension of a breach of the peace although statements had been put in and the enquiry had been commenced. This again has

no bearing upon the question under consideration.

I am satisfied that the High Court can in the exercise of its revisional powers set aside the order in question, as I have found that the Magistrate

had no jurisdiction to pass it. The order of the 5th January directing attachment and the preliminary order of the 10th January have not been

attacked and it is also conceded that in the filing and the receiving of the written statements no irregularity was committed. In the circumstances I

set aside the order of the 1st February and direct the Magistrate to proceed with the enquiry and deal with the petition in one of the modes he is

authorized to deal with under Sections 145 and 146.

A further objection taken relates to the portion of the order which directs the release of the property from attachment and the handing over of it

to the respondents. The Magistrate refused to go into the question of the possession of the property, but the order he made is tantamount to an

adjudication that counter-petitioners were in possession of the property. The cases relied on by the petitioner Chenga Reddi v. Ramasami

Goundan (1914) 1 L.W. 1032 , and Karimuddi Fakir v. Naimuddi Kavlraj (1905) 3 C.L.J. 573 , are in point. As a matter of fact no evidence

was taken, no statements were made before the Magistrate and he made the order in question merely on account of an allegation in the written

statements of the counter-petitioners to the effect that the property had been taken from them by the village Munsif in pursuance of the order of

attachment. This order is clearly wrong. I therefore set aside the order of the Magistrate relating to the disposal of the property and its release from

attachment. I have been asked to give directions to the Magistrate as regards the order he should make in the matter of the disposal of the

property. I do not think that it is either proper or desirable to follow this course and I merely direct him to make such order as is in accordance

with law.

As regards costs I direct that each party shall bear his own costs of this revision case.