Rabindranath Sahu vs Dayanidhi Sahu and Others

S.K. Mohanty, J.—First party in a proceeding u/s 145, Cr.P.C. is in revision against order dated September 25, 1987 passed by the Executive Magistrate, Nayagarh, accepting the submission of the second party and dropping the proceeding midway, as not maintainable.

The case land measures 9 decimals which admittedly belonged to Bharat Sahu. Claiming to have entered into possession of the same by virtue of purchase under a registered sale deed dated July 3,1985, the second party initiated a proceeding u/s 144, Cr.P.C. against the first party which was decided in favour of the former on December 21, 1985 making the restraint order against the tatter absolute. Thereafter on May 30, 1986 the first party initiated the impugned proceeding u/s 145 of the Code against the second party concerning the above land. After being satisfied that there was apprehension of breach of peace concerning, the disputed land, the learned Executive Magistrate noticed both the parties to appear on July 1,1986 and to put in written statements of their respective claims. Thereafter the second party filed his written statement on November 27,1986. On July 30, 1987, the case was posted to August 10, 1987 for argument on the point of maintainability and the same was ultimately heard on August 14, 1987 and by the impugned order dated September 25* 1987 the proceeding has been dropped with the following observations:

In the 144 proceeding which proceeded the present u/s 145 proceeding the possession of the present 2nd party was established by the judgment of the Hon''ble Executive Magistrate on 21-12-1985......

The judgment given by the Executive Magistrate, Nayagarh earlier in u/s 144 proceeding was complete in all respects and there is no scope left again to analyse the fact of possession in respect of the same land schedule.

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The impugned order is attached on the follwoing three grounds:

The learned Magistrate should not have been influenced by the finding regarding possession- recorded in the proceeding u/s 144 Cr.P.C. He should have afforded opportunity to the parties to produce evidence in the matter, of possession of the disputed land. Lastly, in the facts of the case, he should not have dropped the proceeding midway without holding an enquiry as regards possession of the disputed land.

The decision of the learned Magistrate to drop the proceeding u/s 145 of the Code has been arrived at being solely influenced by the earlier order u/s 144 of the Code. The correctness of such conclusion is challenged by the petitioner.

It is the consistent view of the Patna High Court vide Gita Prasad Singh v. Emperor : AIR 1925 Pat 18 , Jugeswar Prasad Vs. Ramdhari Mahto and Others, ,Agarwalla v. Emperor : 30 Criminal Law Journal 361, that in view of the peculiar jurisdiction u/s 144 of the Code an order under it should not be treated in a subsequent proceeding as evidence of posse- ssion. The Calcutta High Court has also taken the similar view in the case of Turu Majhi and Others, (2nd party) Vs. The State (Bimal Mukherjee, 1st party), . Orders passed u/s 144, Cr.P C. are merely temporary orders in urgent cases of apprehended danger and is intended for emergent situations. It is not expected, having regard to the character of the order, that it would be passed after taking evidence of possession in the manner laid down in Section 145(4) of the Code so as to entitle the Magistrate judicially to pronounce on the fact of possession. Therefore, it is often said that the orders passed u/s 134, Cr.P.C. decide nothing about respective rights of parties. Having regard to the peculiar jurisdiction conferred by Section 144 the fact of the order may be adnmissible under Sec, 13 of the Indian Evidence Act, but no inference can be drawn from it as to possession When an order u/s 144, Cr.P.C. has spent its force the incidental observation regarding possession in that order will have little, if any, effect upon the question of actual possession, if such a question arises in a subsequent proceeding at any rate the finding of possession could not be binding in a substequent proceeding u/s 145, Cr.P.C. Consequently, the learned Magistrate has erred in law in utilising the finding of possession recorded in the earlier proceeding u/s 144, Cr.P.C. as evidence of possession of the successful party in the subsequent, proceeding under Sec, 145, Cr.P C.

Admittedly the learned Executive Magistrate has not afforded reasonable opportunity to the parties .to produce evidence, oral and documentary, in support of their respective claims. Sub-section (4) of Section 145 casts a duty on the Executive Magistrate to hear the parties and receive all such evidence as may be produced by them. It is true that in the instant case there is no material to show that either of the parties offered to lead evidence. If a strict and literal meaning is ascribed to the words__ "receive all such evidence as may be produced" contained in Sub-section (4), then the parties to the dispute will have to keep their witnesses and documents in readiness on the date of putting in their respective written statement without knowing the nature of claim advanced by the adversary in his written statement and evidence to be adduced to refute the same. Such a narrow interpretation will be unjust and unfair. The correct and reasonable interpretation of the aforesaid words would be that though the parties have the option to adduce evidence, yet the Executive Magistrate himself must afford reasonable opportunity to both the parties by asking them to produce their evidence, both oral and documentary, in the case at hand, the learned Magistrate has illegally omitted to afford the required opportunity to the parties.

Upon being satisfied that a dispute likely to cause breach of peace exists concerning any land, an Executive Magistrate having jurisdiction issues an order u/s 145(1), Cr.P.C. known to the lawyers practising on criminal side as preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. Section 115(4) casts a duty on the Magistrate to peruse the written statements put in by the parties, to receive evidence adduced by them and to hear them. Thereafter three courses are open to him under the provisions of Secs. 145 and 146 of the Code. Firstly, he may decide that one of the parties was in possession as is referred to in Section 145. Secondly, he may decide that none of the parties was in such possession hirdly he may say that he is unable to satisfy him- self as to which of the parties was in such possession. Thus a proceeding u/s 146 of the Code which is commenced by a preliminary order must be followed up by an enquiry and the proceeding must come to its logical end with the Magistrate adopting one of the above three courses and passing consequential orders. He cannot drop the proceeding half way unless of course either of the parties satisfies him at any stage of the proceeding u/s 145 of the Code that there has never been or there is no longer any dispute likely to cause breach of peace, because in that case the plunk on which the jurisdiction of the Executive Magistrate rested disappears. In no other case a proceeding u/s 145 of the Code initiated by drawing up of a preliminary order can be dropped arid it must run its full course. The case at hand being not one where either party satisfied the learned Magistrate that there has never been or there is no longer any dispute likely to cause breach of peace, the learned Magistrate acted illegally in dropping the proceeding midway without holding an enquiry to come to the logical end.

In the result, the revision is allowed, the impugned order is set aside and the case is remanded. The learned Executive Magistrate is directed to afford opportunity to the parties to adduce evidence in support of their respective claims, hear them and dispose of the proceeding u/s 145, Cr.P.C. according to law.