Youngrin Chhetan vs Tarjin Chholak

D.B. Lal, J.—This petition under revision is directed against the order of the Sessions Judge, Simla confirming in revision another order of the Magistrate Ist Class, Pooh, whereby he has dismissed a complaint filed u/s 145 of the Code of Criminal Procedure. The facts giving rise to the complaint are, that the Petitioner Chhetan claimed to be in possession over I bigha and 16 biswas of land bearing khasra No. 445 and situate in village Gyabong of Tehsil Pooh. Admittedly he was dispossessed by chholak-owner of the land on 13.3.1971. Thereafter he filed a complaint on 17.3.1971 u/s 145 of the Code of Criminal Procedure. According to him the Respondent had thereatened his mother who went to object for illegal dispossession. The Magistrate having been satisfied initially with allegations made in the complaint made the preliminary order on 30.8.1971 fixing 30.9.1971 as the date up to which the parties were called upon to produce their written statements. Thereafter on 20.10.1971 the Respondent put in his objection which was to the effect that the Magistrate had no jurisdiction because the Petitioner was already dispossessed more than two months before the passing of the preliminary order, that there was no apprehension of a breach of the peace and that a proceeding u/s 447 of the Indian Penal Code for wrongful dispossession was pending in Court. The counsel representing the Petitioner gave out before the Magistrate that his real purpose was to take possession although the Petitioner had already instituted proceedings u/s 447 of the Indian Penal Code. The learned Magistrate, finding that the Petitioner was dispossessed two months before the passing of the preliminary order and that there was no apprehension of breach of peace cancelled the preliminary order and dropped the proceedings. Against that order a revision was filed before the Court of the Sessions Judge.

The learned Sessions Judge agreed with the learned Magistrate and held that there was no apprehension of breach of peace which was sine qua non for conferring jurisdiction. Accordingly he too confirming the order of the Magistrate dropped the proceedings. Now the Petitioner has come up in second revision before this Court.

It is much less true to say that the High Court will not enter into a question as to the sufficiency or insufficiency of material before the Magistrate or the Sessions Judge against whose order the present revision is filed. If a reasonable view could be taken that there was no apprehension of breach of peace, the order must be upheld and cannot be set aside. From the order of the Magistrate it is evident that the counsel for the Petitioner admitted that the main purpose in filing the complaint was to obtain back the possession. That apart more than two months had expired next before the passing of the preliminary order when dispossession was effected. That learned Magistrate also observed that there was no likelihood of the breach of peace. The Petitioner could file a civil suit to get back possession. In those circumstances he cancelled the preliminary order presumably u/s 145(5) of the Code of Criminal Procedure. The learned Sessions Jude has also observed that no evidence was available for existence of breach of peace and that the jurisdiction was lost as the Petitioner was already dispossessed two months before the passing of the preliminary order and that the criminal proceedings u/s 447 of the Indian Penal Code wear already pending for wrongful dispossession. With these observations he agreed with the order of the learned Magistrate and dismissed the revision.

It is contended by the learned Counsel on behalf of the Petitioner that the Magistrate was duty bound to go through the affidavits filed before him. Once he had passed the preliminary order he could not drop it in such a manner as he has done. In my opinion, u/s 145(5), nothing precludes a Magistrate to cancel the preliminary order if the Respondent succeeds in showing that no dispute likely to cause the breach of peace exists or has existed. Therefore, the order of the Magistrate was u/s 145(5) because for the reasons stated he was satisfied that no dispute likely to cause the breach of peace ever existed. Both the learned Magistrate and the learned Sessions Judge have considered the circumstances made out in the case. A reasonable view could be taken upon the statement made by the counsel, upon the fact of no incident of breach of peace having arisen and upon the criminal proceedings u/s 447 of the Indian Penal Code already taken up by the Petitioner, that there was no longer any apprehension of breach of peace. It was a mere case of dispossession by the rightful owner and the Petitioner could go to a Civil Court to seek his redress. Moreover, the preliminary order was passed long before the expiry of two months next before its date and no presumption could arise in favour of the Petitioner.

A Magistrate has a right to terminate the proceedings u/s 145 if he is satisfied that there was no further likelihood of a breach of the peace or that there was initially no apprehension of a breach of the peace. As observed in Ram Lal Singh v. State AIR 1955 Allahabad 46, where the Magistrate has found that there is no apprehension of a berach of the peace he has no jurisdiction to decide the further question as to which party was in possession of the disputed property. The apprehension of a breach of the peace is the first condition necessary to give the Magistrate jurisdiction u/s 45. But parties or any other person interested may u/s 145(5) show that no such dispute as aforesaid exists or has existed and can object that there is no danger of a breach of the peace and then, in that case, the original order Section 145(1) can be cancelled by the Magistrate u/s 145(5). The Magistrate''s power to drop the proceeding, however, is not limited to the circumstances mentioned in Sub-section (5). He can drop the proceeding even on his own initiative whenever he is satisfied that there is no further likelihood of a breach of the peace, therefore, the order of the Magistrate, had lie not dropped the proceedings would have been without jurisdiction. In order to have the stisfaction that there was no apprehension of a breach of the peace the discretion of the Magistrate is not circumscribed by only looking up to the affidavits filed by the parties. If the circumstances revealed before him amply proved that there was no apprehension of a breach of the peace, he was justified to drop the proceeding.

It is abundantly clear that the Petitioner was dispossessed on 13-3-1971 and the preliminary order was made on 30-8-1971. Basides that there was no apprehension of a breach of the peace. It was a pure and simple case of dispossession for which a relief could be obtained in a civil Court. The power of the Magistrate to cancel the preliminary order u/s 145(5) was noticed in Ram Lal etc. v. State etc. 1971 . S.L.J 58. The Learned Chief Justice observed that Courts of law not infrequently grant initial orders without hearing both sides. Section 145(5) provides for a cancellation of the preliminary order if, after persons interested have appeared before the Magistrate, it transpires that the preliminary order was not needed or obtained by misrepresentaion.

Therefore, no error could be pointed out in the order of the Magistrate as well as of the learned Sessions Judge. In fact the Magistrate had no jurisdiction to proceed any further. He was right in cancelling the preliminary order u/s 145(5) of the Code of Criminal Procedure. The revision has no force and is hereby dismissed.