Smt. Rati vs State of Uttar Pradesh and Another

M. Wahajuddin, J.—The Magistrate passed an order also simultaneously attaching the property. The matter went up in revision and the revisional court found that actually in the preliminary order a satisfaction regarding breach of peace has not been recorded so the proceedings are without jurisdiction and the revisional court quashed it. It is urged that the revisional court will have no jurisdiction and no revision will lie and in support of such submission reliance is placed upon the case of Smt. Premlata and Another Vs. Ram Lubhaya and Others, . The revision may not be entertainable but now that the matter has come before this Court and it will have to be examined whether the proceedings u/s 145 Code of Criminal Procedure are without jurisdiction and can continue. Obviously, the Court exercising its inherent powers would not allow an abuse of the process of law. If a proceeding is carried without jurisdiction then this Court will certainly itself quash that proceeding. Reliance was placed upon the case of Kookkil Kelu Nair Vs. Kottammal Thanduparakkal Kunhi Mohammed Haji and Others, following AIR 1958 All 1369 . That was a case under the provisions of old Code of Criminal Procedure, an order attaching the property as well was passed. It was urged that as the attachment order was contained in the preliminary order the Magistrate could not modify it. What transpired was that the Magistrate cancelled attachment in respect of part of such property later and that was challenged. It was held that the Magistrate could modify the earlier order and release a part of the attached property which was attached by a preliminary order. An attachment can be withdrawn at any stage. The crux of the matter is whether the Magistrate could proceed u/s 145 Code of Criminal Procedure without recording his satisfaction regarding apprehension of breach of peace. In fact the satisfaction on apprehension of breach of peace is a condition sine qua non for conferring jurisdiction upon the Magistrate to deal with a matter which would otherwise be of civil nature. When this is the position, the Magistrate derives the very jurisdiction by recording a satisfaction that there is an apprehension of breach of peace centering round the dispute on possession over immovable property. Unless and until this is done the very proceeding is a nullity and without jurisdiction. In AIR Manual, IVth Edition, Vol. 13 page 11 a large number of rulings have been quoted on the heading ''is satisfied'' which all lay down that the very jurisdiction to initiate a proceeding u/s 145 Code of Criminal Procedure would depend upon the Magistrate''s recording his satisfaction and a preliminary order which does not record satisfaction as such is bad in law. In fact, the entire proceedings before the Magistrate are without jurisdiction and consequently this application u/s 482 Code of Criminal Procedure has no force and is summarily rejected notwithstanding that the revisional Court had no jurisdiction to entertain a revision. I may, however, observe that the Magistrate will be at liberty to pass a fresh preliminary order u/s 145 Code of Criminal Procedure recording his satisfaction if he is satisfied regarding apprehension of breach of peace centering round the dispute over possession of immovable property and he can only then proceed afresh.

A copy of this order may be issued to the applicant''s counsel on payment of usual charges by tomorrow.