Tiloki Rai vs Emperor and Others

Jwala Prasad, J.—This is an application against an order of the District Magistrate of Bhagalpur, dated the 5th October 1920, setting aside an order u/s 144 of the Code of Criminal Procedure passed by the Deputy Magistrate of the District, and directing that "Section 145, Criminal Procedure Code, order may be substituted for it (Section 144. Criminal Procedure Code) by the Sub-Divisional Officer.

Both the parties purport to have purchased the land in dispute from one Bandu Mandar, the 1st party, by a kabala dated the 5th January 1920, and the 2nd party by three kabalas with respect to different portions of the land, dated 12th November 1919, 2nd January 1920 and the 27th January 1920. The 1st party informed the Police as well as complained to the Magistrate of an interference by the 2nd party in the cultivation of the land in question. The matter was referred to the Police and the Sub-Inspector of Police reported in favour of the 1st party and prayed for orders under Sections 107 and 144 of the Code of Criminal Procedure on the ground that there was a serious danger to the breach of the peace.

On the 25th August 1920 the Magistrate issued a notice u/s 144 of the Code of Criminal Procedure against the 2nd party. However, on the 4th of September the Magistrate overruled the objection of the 2nd party and refused to revoke the order u/s 144 of the Code passed, on the 25th August, Aggrieved by this order, the 2nd party moved the District Magistrate.

The District Magistrate held that as the dispute was regarding land, the title and possession of either side being not clear from the record, it was a fit case for a proceeding u/s 145 of the Code of Criminal Procedure. He accordingly set a side the order u/s 144, and directed a proceeding u/s 145 to be substituted for it by the Sub-Divisional Officer.

The view taken by the District Magistrate that this was a fit case for a proceeding u/s 145 is perfectly sound. A mere statement of the case as detailed above is sufficient to indicate that the possession over the property is disputed, both parties claiming the land on the strength of recent sale-deeds from tie original holder The order of the District Magistrate u/s 145 is, therefore, unimpeachable and, as a matter of fact, Mr. Pal concedes that.

Mr. Pal, however, disputes the validity of the order made by the District Magistrate directing the Sub-Divisional Officer to substitute 145 proceeding for the 144 proceeding. He supports his contention by referring to the cases of Rash Behari Singh v. Emperor 39 Ind. Cas. 328 : P. L. W. 258 : 18 Cr. L. J. 488. and Kailash Chandra Pal v. Kunta. Behari Poddar 24 C. 391 : 1 C. W. N. 393 : 12 Ind. Dec. 928. Mr. Mukerjee, appearing on behalf of the Opposite Party (2nd Party), replies to the contention by c ting the case of Sahdeb Singh v. Jumon Jolaha 44 Ind. Cas. 336 : 4 P. L. W. 195 : 19 Cr. L. J. 320. I have considered these authorities. It appears to me plain that Section 145 of the Code of Criminal Procedure requires the Magistrate instituting the proceeding to satisfy himself upon the material before him as to the existence of a dispute likely to cause a breach of the peace. In this view the superior Court can only recommend to the Magistrate concerned to draw up the proceeding if he if satisfied that the dispute is likely to cause a breach of the peace. The order of the District Magistrate directing the Sub-Divisional Officer to substitute 145 proceeding for 144 is certainly wrong. The Sub-Divisional Officer, however, on the 29th October already drew up a proceeding u/s 145. In that proceeding he distinctly refers to the Police report of the 24th August as disclosing materials for his being satisfied as to the existence of a dispute likely to disturb the public peace. The order u/s 144 having been set aside, the case was sent back to him. It was certainly open to the Magistrate to look into the circumstances and to find out whether, in the circumstances of the case, a proceeding u/s 145 of the Code should or should not be instituted. He has done so and there is material on the record to justify his action. As a matter of fast, the 1st party itself moved the Authorities, both the Police and the Magistrate, for an intervention in order to prevent a serious breach of the peace. It is not denied even at this stage that there is an existence of such a dispute and from the nature of the dispute there ii certainly a danger to the imminent breath of the peace. Under such circumstances. I do not think that the proceeding now drawn up by the Deputy Magistrate should be set aside. It must proceed in accordance with law.

The result is that the application is rejected.