Ram Bachan Singh and Another vs Ram Sajan Singh and Another

M.P. Verma, J.—This petition in revision has been directed against an order of Shri N.K. Singh, Sub-divisional pore, dated the 11th February, 1970, passed in Case No. 112M of 1970. By this order the learned Magistrate drew up a proceeding u/s 145 of the Code of Criminal Procedure and attached the subject-matter in dispute. This order is being challenged before this Court on the ground that there were no materials before the learned Magistrate to start the proceeding u/s 145 or to attach the properties in question. Subjection (1) of Section 145 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), lays down that, whenever a District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land etc., he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader...It has been decided in a number of cases that two grounds must exist before the Magistrate can assume jurisdiction to start a proceeding u/s 145 of the Code. It is well known that any right concerning immovable property is within the jurisdiction of a Civil Court; but the Magistrate gets jurisdiction over that property as regards its possession only when there is an apprehension of a breach of the peace, otherwise he has got no jurisdiction. So, there must be a bona-fide land dispute and, secondly, an apprehension of a breach of the peace because of that dispute. If these two grounds are stated in the order and the Magistrate feels satisfied about them, then he can start a proceeding u/s 145 of the Code. I may here refer to two decisions of the Supreme Court, (1) Bhinka and Others Vs. Charan Singh, and (2) R.H. Bhutani Vs. Miss Man J. Desai and Others, . It was observed in the case of R.H. Bhutani that the sufficiency or otherwise of the satisfaction of the Magistrate about the existence of those two conditions should not be agitated in the revisional Court, because that is a matter of the subjective satisfaction of the Magistrate. In the present case the impugned order says that "From perusal of the petition it appears that there is apprehension of breach of peace over plots mentioned in the petition." Further on it is said that there is "a chronic land dispute and proceeding u/s 144 Criminal Procedure Code will not serve the purpose", and "there is threat to breach of peace over, the lands mentioned in the petition" and so a proceeding u/s 145 of the Code should be drawn up. In my opinion, the first contention of the learned counsel for the petitioners cannot be accepted. The Magistrate has, in specific words, expressed the grounds upon which ha wanted to take action, and further stated that there was an apprehension of a breach of the peace because of the chronic dispute for possession over the lands in question. In my opinion, this part of the order cannot be assailed.

As regards the question of attachment, the impugned order simply says--Draw proceeding u/s 145 Cr.P.C. restraining members of both the parties from going over the lands in dispute. Disputed lands are attached u/s 145(3) Cr.P.C. "[Perhaps "145(3)" is a mistake for "145(4)"]. The heading of Sub-section (4) of Section 145 is "Inquiry as to possession", and the last proviso to Section 145(4) lays down:--

Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

So, obviously, there must be a case of emergency and the Magistrate should express in his order that there was a case of emergency, otherwise his order will not be backed by any reasoning. Learned counsel appearing for the opposite party has argued that in Sub-section (1) of Section 145, or, as a matter of that, in Section 117(3), it is mentioned that the Magistrate has to state the grounds of his being so satisfied, but this expression is wanting in this proviso. In my opinion, so far as this difference is concerned, it is patent on the face of it. But, as a general rule of law, every order must be backed by reasoning, otherwise a Superior Court cannot determine as to what factors were passing through the mind of the Magistrate who passed that order. That Court cannot find whether the order is whimsical, superficial or based on idiosyncrasy. So, every legal order, whether there are directions in the law to give reasons or not, must be backed by reasons. That is the general principle of law. In that view of the matter, I think the impugned order suffers from this infirmity. He has not written is the order as to why he was satisfied. From the language of the proviso it does not follow that whenever a proceeding u/s 145 of the Code is drawn up, attachment will follow as a matter of course. Of course, the Magistrate has special powers to attach the land or even allow the party in actual possession to exercise the right of possession pending the inquiry before him. So in such circumstances this power must be exercised very cautiously and with good reasoning.

A similar matter came up for discussion before the Lahore High Court in (3) AIR 1926 205 (Lahore) . It was observed in that case that the jurisdiction of a Magistrate to deal with disputes concerning land is strictly limited. A very exceptional jurisdiction in that regard has been conferred upon him by Section 145. The power u/s 145 is given to the Magistrate for the purpose of preserving peace and it is only for that purpose that he may, where a breach of peace is imminent, attach the disputed property. So, here also stress has been laid upon the breach of the peace being imminent. In a Fall Bench case of Ahsan Sofi and Others Vs. Sona Mir, J. and K. 17 (Ahsan Safi V. Sona Mir), the order of attachment was set aside on two grounds. The first ground was that no preliminary order u/s 145(1) of the Code had been passed, and, secondly, the Magistrate had failed to indicate that it was a case of emergency and so the tree in question should be attached. In my opinion, no loose thinking should be encouraged on the part of the subordinate Magistrates. They must express clearly, when passing an order under this proviso or u/s 145(1) of the Code, that there was a case of emergency and so the subject-matter of dispute was being attached, or that there was an apprehension of a breach of the peace concerning the possession of immovable property. I would, therefore, set aside the order of the Magistrate in this case so far as it concerns the attachment of the subject-matter of dispute. But it may be observed that, if, in future, he finds that a case of emergency has arisen before him, he will not hesitate in attaching the properties in question so that breach of the peace may not take place. In the result, the application is allowed in part as indicated above.