Ramesh vs Kishandas

Samvatsar, J.—The opponent Kishandas filed a complaint in the Court of Additional District Magistrate, Indore, against the two petitioners for proceeding against them under Sec. 145, Cr. P.C. It was alleged in the Complaint that there was a dispute between the parties with respect to a Bidi Shop in House No. S. Nandlalpura, Indore and, that breach of peace was likely to be caused on account of that dispute.

The learned Magistrate passed a preliminary order by which he called upon the petitioners to furnish security for Rs. 2,000 and a personal bond of the same amount and directed them to remove their locks and to restore possession to the complainant and further to give an undertaking not to claim the shop outside the Court proceedings. They were also ordered to produce evidence, if any.

Aggrieved by this order the petitioners preferred a revision-application which was heard by the Additional Sessions Judge, Indore. The Sessions Judge was satisfied that the order passed by the learned Magistrate was not in conformity with the requirements of Sec. 145, Cr. P.C. and has referred the matter to this Court with a recommendation that the same may be quashed.

Mr. Devandas, learned Counsel for the opponent frankly conceded that the order of the Magistrate cannot be supported and It cannot be construed to be a preliminary order under Sec. 145, Cr.P.C.

Looking to the order itself I am satisfied that the order passed by the learned Magistrate cannot at all be upheld. The learned Magistrate has in the first place assumed jurisdiction to initiate proceedings against the petitioners without recording any finding that there was a likelihood of breach of peace by reason of the dispute alleged to exist with regard to the Immovable property. His order directing the petitioners to remove their locks, to hand over possession of the property to the complainant and to give an undertaking not to claim the shop, is one that could not have been passed as a preliminary order under Sec. 145, Cr.P.C. The further direction in the order requiring the petitioners to show cause why security should not be taken from them is also not warranted by the provisions of Sec. 145, Cr.P.C. If the learned Magistrate wanted to Initiate proceedings under Sec, 107, Cr. P. C� he could have done so separately. But I do not see bow a mixed and composite order of the type before me could at all be passed by the Magistrate in a proceeding under Sec. 145, Criminal Procedure Code. I am of opinion that Mr. Devandas has rightly conceded that the order passed by the learned Magistrate Is contrary to the provisions of law and cannot be supported. On this view of the matter, the reference must be accepted and the order passed by the learned Magistrate must be quashed.

The next point to be considered is whether the case should be seat back to the Magistrate concerned for passing proper preliminary order and for proceeding to dispose of the case according to law.

In this case the complaint was filed by the opponent more than ten months before and the learned Magistrate passed the impugned order on 19-6-1956, Nearly ten months have thus passed away and I am of opinion that no useful purpose will be served by remanding the case and reviving the proceedings.

The petitioners have been in possession for more than ten months and they cannot now be dispossessed without a civil suit,

I accept the reference, allow the revision-application filed by the petitioners and quash the order passed by the learned Magistrate on 19-6-1956. The complaint is also dismissed.