Ram Saroop Chawdhry and Others vs Musammat Darsano Koer

Sultan Ahmed, J.—This is an application to set aside an order passed u/s 145 of the Code of Criminal Procedure by the Sub-Divisional Magistrate of Begusarai, declaring the first party in possession of the property in dispute.

The main ground, that has been urged by Mr. Nadkeolyar on behalf of the petitioners, is that there was no imminent danger of a breach of the peace to justify the proceedings of the Magistrate. I have looked into the proceedings and they are said to be founded on a report of the Inspector of Police, dated the 2nd November 1919. The Magistrate says that this Police report satisfied him that there was an imminent danger of a breach of the peace. I have gone through the whole report of the Inspector of Police, but do not find one word therein to suggest that there was any apprehension of a breach of the peace. The learned Vakil appearing for the opposite party has frankly conceded that no proceedings u/s 145 could be founded on that Police report by itself; but be wants me to refer to the earlier reports of certain other Police Officers to show that there was a likelihood of breach of the peace between the parties. This I have declined to do on the ground that the Magistrate drew up the proceedings upon the report of the Inspector of Police dated the 2nd November 1919, and he did not found the proceedings upon any earlier report of the Police. This, in my opinion, is a fatal objection to the order that has been passed u/s 115 and, therefore, it must be set aside.

I cannot allow, however, to pass one matter in connection with the final order, that has been passed in this case, un-noticed. The learned Magistrate has gone very elaborately into the question of title of the parties, much more, in my opinion, than a proceeding u/s 145 would justify. A Magistrate in proceedings u/s 145 is entitled to look into the question of title only to arrive at a satisfactory conclusion on the question of possession. He has got no power to decide the question of title or look into it apart from the question of possession. If he wanted to go into the question of title in order to effectively decide the question of possession, he would be perfectly justified in doing so. On the other hand, if the question of possession could be effectively decided without a decision on the question of title, he would not be entitled to go into the title of the parties.