Patna High Court
Khubi Singh vs Darbari Mahton on 22 February, 1921
Equivalent citations: 62IND. CAS.177, AIR 1921 PATNA 176
JUDGMENT Jwala Prasad, J.
1. The Rule mast be made absolute. The action of the Magistrate in the present case is illegal from start to finish.
2. Upon the application of the 1st party, dated the 9th September 1920, the Magistrate referred the matter to one Mr. Blake of Chatwara Factory, and on receipt of his report he drew up a proceeding under Section 145 of the Code of Criminal Procedure. In the proceeding he simply states :
Whereas it appears that a dispute likely to cause a breach of the pease exists, etc.
3. He does not disclose the source of his information as to there being a dispute likely to cause a breach of the peace. A proceeding under Section 145 of the Code can only be drawn up when the Magistrate is "satisfied from the Police report or other information that a dispute likely to cause a breach of the peace exists."
4. The Magistrate is bound to set forth the grounds of his satisfaction of the existence of danger of a breach of the peace. He has not done so in the present case, nor was there any material before him on the point. There was no Police report. Mr. Blake's report to him does not touch this point, but only deals with the possession of the contending parties. The Magistrate did not acquire any jurisdiction either to institute the proceeding or on the basis of such a proceeding to declare the possession of the first party under Clause (4) of Section 145. This is settled by authorities and is clear from Section 145 itself. It is too late now for the Magistrate to ignore it.
5. It may be mentioned that the evidence of witnesses recorded by him on the spot is conspicuously silent upon the aforesaid point. On the 13th of November, the date fixed for the hearing of the case, the Magistrate recorded the following order:
First party absent. Second party present. Proceeding discharged as there is no immediate apprehension of a breach of the peace.
6. The above order was passed upon the application of the second party, stating that neither there was a Police report, nor did the report of Mr. Blake disclose any danger to a breach of the peace. The order passed by the Magistrate was, therefore, one under Clause (5) of Section 145, which requires the Magistrate, on being satisfied that no dispute likely to cause a breach of the peace exists, to cancel the order passed under Clause (1) of the section, inasmuch as the effect of an order under Sub-section (5) is that the further proceeding is once for all dropped. The Magistrate is not competent to revive the proceeding, but can only take action to start a fresh proceeding upon fresh materials under Clause (1) of the section. This has been conclusively shown by this Court in the case of Deenandan Singh v. Ramajodhya Singh 41 Ind. Cas. 139 : 2 P.L.W. 25 : 18 Cr. L.J. 763 and by the Calcutta High Court in the cases of Tarini Charan Chowdhury v. Amulya Ratan Roy 20 C. 867 : 10 Ind. Dec. (N.S.) 583 and Patbati Charan Roy v. Sagiad Ahmad Chowdhury 35 C. 850 : 12 C.W.N. 60 : 7 Cr. L.J. 401. It may also be mentioned that the order of the 18th November reviving the proceeding was passed! behind the bask of the second party, which the Magistrate had no right to do. The Magistrate, in his explanation, says that:
it was unsafe to allow the matter to remain undecided, since murder had frequently been committed over similar disputes in the same P.S. jurisdiction which is inhabited by turbulent gowalas
7. The general state of affairs in that Police Station cannot justify the order of the Magistrate in the present case. There must be specific materials before him as to the existence of a dispute as is contemplated in Clause (1) of Section 145 with respect to the land in question.
8. Again, the Magistrate fixed the 18th of December for deciding the dispute. Co the 11th December be changed it to the 19th December. On the 19th December he went to the locality and none of the parties examined witnesses on their behalf; but the Court picked out six witnesses from a crowd and decided the case upon their evidence. These witnesses are said to be Court witnesses. Their evidence is recorded on one page and consists of a line or two in the case of each in the general way:
Darbari Mahton son of Dasain is in possession of the land on which the Court is sitting.
9. The Court has not, therefore, decided upon the evidence adduced by the parties in the ease, but has decided upon its own investigation into the case, a procedure admissible in the good old days of Harun-ul Rashid but is not justified by the procedure in vogue in the present century. The Magistrate in his explanation justifies the extraordinary procedure adopted by him on the ground that the proceeding before him ''was a summary one and was disposed of summarily" and that the enquiry he was holding was "not a local enquiry but a summary local trial."
10. In this the Magistrate has erred, inasmuch as the enquiry of a proceeding under Section 145 should be by the procedure laid down for a summons case, as is obvious from Clause (3) of Section 145 : vide Dhabari Mian v. Gorakh Prasad 46 Ind. Cas. 517 : 5 P.L.W. 103 : 19 Cr. L.J. 741, The nature of the enquiry is clearly indicated in Clause (4) of the section which exempts only the right of the parties from being dealt with, but so far as the possession is concerned, the enquiry is to be as full as that of a summons case, entitling each party to adduce evidence. The Magistrate has practically shut out the first party from giving evidence in the case. He has decided the matter solely upon the result of his local investigation, whether it be called "local summary trial" or local inspection. There has, therefore, been an error of jurisdiction in the trial of the case; vide Bam Sahai Singh v. Dwarka Singh 61 Ind. Cas. 712 : 1 P.L.T. 569 : 22 Cr. L.J. 424.
11. Coming to the final order in the case, the order is defective and is not in accordance with Clause (6) of Section 145. The Magistrate concludes his order simply by saying: "Warn opposite party not to interfere with the possession of the first party in any way."
12. His order ought to have been to declare the party in whose favour he finds possession to continue to be in possession of the property until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. The order of costs passed by him has contravened the requirements of Section 148, Clause (3), of the Code of Criminal Procedure: vide Jhaman Mahton v. Thakuri Mahton 57 Ind. Cas. 449 : 1 P.L.T. 369 : 21 Cr. L.J. 25 : 2 U.P.L.R. (Pat) 192. The cost is allowed only for witnesses or Pleader's fee, which must be specified in the order relating to costs, It has been shown conclusively, as is stated at the outset of this judgment, that the order of the Magistrate is bad from start to finish. It is accordingly set aside.
13. If there be any danger to a breach of the peace, the Magistrate will be at liberty to take proper action under the Code of Criminal Procedure.