Prof. Dharmsheela Singh and Another vs Sri Ramashish Sharma and Another

S.K. Chattopadhyaya, J.—Heard learned Counsel for the Petitioners, Opposite Party No. 1 and the State.

In this application the Petitioners have questioned the legality and validity of the order dated 28.2.2000 passed by the learned Magistrate converting a proceeding u/s 144 of the Code of Criminal Procedure to one u/s 145 of the Code of Criminal Procedure.

The proceeding u/s 144 of the Code was initiated at the instance of 1st Party-Opposite Party No. 1. The learned Magistrate called for a report from the Special Executive Magistrate who in his report has informed the learned Magistrate that there was some bonafide dispute over a property for which there may be breach of peace at any time. On the basis of such report the learned Magistrate by his order dated 3.1.2000 drew up a proceeding u/s 144 of the Code against the members of both the parties restraining them from making any further construction of the concerned Chajja and ventilation and from committing any overt act in respect thereof which may lead to a breach of peace. While passing this order he asked both the parties to show cause by 17.1.2000. He also informed the local police to maintain peace and status quo.

Admittedly thereafter both the parties filed their show cause and by the impugned order the learned Magistrate on perusal of show cause and documents came to the conclusion that "this case is of civil nature and it deserves detail enquiries u/s 145 of the Code for final settlement of the dispute." He thereafter converted the case to a proceeding u/s 145 of the Code.

learned Counsel for the Petitioners vehemently contended that the order of the learned Magistrate is vitiated in law because he has neither given any finding regarding bonafide dispute over a property nor about any apprehension of breach of peace. According to him, these two findings are sine qua non for converting a proceeding u/s 145 of the Code. In support of his contention he has relied on the decision in the case of Mohammad Abbas and Another Vs. Mohammad Mustaqim and Others,

learned Counsel for the Opposite Party, on the other hand, countered the argument by submitting that where the proceeding u/s 144 of the Code was initiated on the report of the Special Executive Magistrate the non-mentioning of those findings about bonafide dispute of properly and apprehension of breach of peace will not vitiate the order of the learned Magistrate. According to him, when the learned Magistrate passed an order of proceeding u/s 144 of the Code he was fully satisfied that there exists an apprehension of breach of peace. Thus, only because in his order of conversion the learned Magistrate failed to mention about these two facts will not render the order illegal. In support of his contention the learned Counsel has relied on a decision in the case of R.H. Bhutani Vs. Miss Man J. Desai and Others,

In the aforesaid case the Supreme Court has specifically observed that the satisfaction of the learned Magistrate about the bonafide dispute and apprehension of breach of peace is final and if on being satisfied on these two counts the Magistrate draws up a proceeding u/s 144 of the Code or converts it into a Section 145 of the Code, the High Court will not interfere with the same. But in the instant case, in my view, the facts are otherwise. It is true that when the learned Magistrate got the report of the Special Executive Magistrate he was satisfied that there is a bonafide dispute as well as apprehension of breach of peace. He, therefore, drew up a proceeding u/s 144 of the Code restraining both the parties and asking them to file their respective show cause.

Now the second stage comes when the show causes from both the parties are before the learned Magistrate. If from perusal of the show cause the learned Magistrate was satisfied that one of the parties was bent upon to take law in his hand and there was actual apprehension of breach of peace at his end, he could have bound him down u/s 144 of the Code. But in this case that has not been done. The learned Magistrate after perusal of the show cause of both the parties mechanically converted the proceeding u/s 145 of the Code. Whether the learned Magistrate was satisfied with the show cause filed by the Petitioner-2nd party or not is not known.

The impugned order does not reflect even the subjective satisfaction of the learned Magistrate over the facts of the case. In my view, this is unwarranted in law. If the learned Magistrate would have said in his order that on perusal of the show cause and other documents he was satisfied that there was genuine dispute over the property which might lead to an apprehension of breach of peace, the order would have been justified because in view of the Supreme Court decision the High Court will not scrutinise the sufficiency of materials before him. These views of mine get support from the decision of this Court as referred to above. This Court has also referred to the decision of the Supreme Court reported in R.H. Bhutani Vs. Miss Man J. Desai and Others, The court has come to the conclusion that in that case the learned Magistrate had not mentioned at all that there was any apprehension of breach of peace in the order, which in the opinion of his Lordship was fatal. The same mistake has been committed by the learned Magistrate in the instant case where he has not stated that on perusal of the show cause of the parties he was satisfied that there was still a bonafide dispute and apprehension of breach of peace.

Under these circumstances, in my view, the order cannot be sustained in law. In the result, this application is allowed. The impugned order dated 28.2.2000 is set aside.

However, it is made clear that if the learned Magistrate is further satisfied from the report of the police or any other person that there is likelihood of breach of peace he may proceed in accordance with law.