Himachal Pradesh High Court
Prem Chand vs Panchhi Ram And Others on 9 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 127 of 2019 Reserved on: September 5, 2019 Decided on: September 9, 2019 .
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Prem Chand ...Petitioner
Versus
Panchhi Ram and others ...Respondents
--------------------------------------------------------------------------- Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
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For the Petitioner
r : Mr. Maan Singh, Advocate.
For the Respondents : Mr. Bhupender Gupta, Senior
Advocate with Ms. Rinki
Kashmiri, Advocate, for
respondent No.1.
Mr. Sudhir Bhatnagar and Mr.
Sanjeev Sood, Additional
Advocates General with Mr.
Kunal Thakur, Deputy Advocate
General, for respondent No.2.
--------------------------------------------------------------------------- Sandeep Sharma, Judge Instant petition filed under S.397/401 CrPC, is directed against order dated 28.3.2019 passed by Sub Divisional Magistrate, Manali, Kullu, Himachal Pradesh, whereby an application having been filed by the petitioner-
complainant (hereinafter, 'complainant') under S.145 CrPC, praying therein for restoration of possession of premises i.e. Shop No. 6 situate in Manu Market, Manali, came to be rejected.
Whether reporters of the local papers may be allowed to see the judgment ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 2
2. Key facts, necessary for the adjudication of the present case as emerge from the record are that the .
complainant filed complaint (Annexure P-3 )under S.145 sub-
sections (1)(2)(3)(4)(5)(6) sub Clauses (A) and (B) and sub-
sections (7), (8), (9) and (10) CrPC seeking restoration of premises in question i.e. Shop No. 6 situate in Manu Market, Manali, namely "Prem General Store", alleging therein that somewhere in the year 2011, respondent started interfering in the premises and as such, complainant filed Civil Suit No. 8/11 in the court of learned Civil Judge (Junior Division), Manali, Kullu, Himachal Pradesh titled Prem Chand vs. Panchhi Ram, which came to be decreed in favour of the complainant vide judgment and decree dated 27.5.2013. Vide aforesaid judgment and decree, possession of premises in question was directed to be restored in favour of complainant and respondent was restrained from dispossessing the complainant from the premises save and except in due course of law. Allegedly on 16.3.2019, at about 9.15 pm, some persons posing themselves as owners, illegally entered and trespassed the premises and threatened the complainant.
They allegedly threw out articles and stock from the premises. Complainant filed FIR No. 41, dated 16.3.2019 under Ss. 447, 427 and 34 IPC with the Police Station, ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 3 Manali. By way of application, complainant prayed that by way of interim measure, his possession may be restored after .
opening the locked premises. After having received aforesaid complaint filed under S.145 CrPC, SDM, Manali, called for report from the Station House Officer, Manali, District Kullu, Himachal Pradesh vide letter dated 19.3.2019 (Annexure P-
4). Station House Officer, Manali, submitted report (Annexure P-5) stating therein that on 16.3.2019, complainant Prem Chand informed telephonically that some drunk persons are forcibly trying to dispossess him by throwing articles from his shop. As per report, complainant also alleged that nephew of Panchhi Ram alongwith two other persons, forcibly entered his shop and threw out articles. He also alleged that he was forcibly dispossessed from shop No. 6, Manu Market, Manali and as such, appropriate action may be taken. Police report also suggests that the complainant also alleged that before the Police could reach the premises, persons mentioned above, had already locked the premises and left the scene.
Police, in its report informed the Sub Divisional Magistrate, Manali that a case under S.447 read with S.34 IPC stands registered and articles lying outside the shop were handed over to the complainant on Sapurdari.
::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 43. On the basis of aforesaid report submitted by SHO, Manali, SDM passed impugned order dated 19.3.2019, .
whereby he dismissed the complaint filed under S.145 CrPC, stating therein that since S.145 deals with dispute with respect to possession causing apprehension of breach of peace, he has no justification to initiate proceedings under S.145 because civil court has already passed injunction order restraining the respondent from causing any interference in the peaceful possession of the complainant. Vide aforesaid order, SDM directed complainant to approach competent Court of law for settlement of dispute. In the aforesaid background, complainant has approached this Court in the instant proceedings with a prayer to quash and set aside impugned order.
4. I have heard learned counsel for the parties and perused the material available on record vis-à-vis impugned order.
5. Careful perusal of documents available on record, especially complaint under S.145 CrPC, filed by complainant (Annexure P-3), clearly reveals that complainant in the year 2011 had filed Civil Suit No. 8/11 in the court of learned Civil Judge (Junior Division), Manali, seeking injunction qua his forcible dispossession from the premises in question against ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 5 respondent, who allegedly made an attempt to disposes the complainant, without there being any authority of law. It is .
also not in dispute that on 27.5.2013, learned Civil Judge (Junior Division), restrained respondent from interfering in the peaceful possession of the complainant over premises in question. Approximately, after six years of aforesaid restraint order passed by civil court, complainant filed application under S.145 CrPC, praying therein for restoration of possession of shop in question.
6. Having heard learned counsel for the parties and perused the material available on record, this Court sees no illegality or infirmity in the impugned order passed by learned Sub Divisional Magistrate, because once rights qua possession of shop in question stood crystallized in a civil suit filed by complainant in the year 2011, there was no occasion, if any, for the Sub Divisional Magistrate to order restoration of possession to the complainant that too on the basis of injunction order passed by civil court on 27.5.2013.
7. Leaving everything aside, close scrutiny of application as referred to herein above, nowhere reveals that there is specific assertion, if any, qua likelihood of breach of peace, which is a condition precedent for the magistrate to initiate proceedings under S.145 CrPC. Apart from above, ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 6 Police, in its report pursuant to enquiry made by SHO, also nowhere stated anything specific with regard to .
possibility/apprehension of breach of peace.
8. Close scrutiny of S.145 CrPC, clearly reveals that the magistrate concerned assumes jurisdiction only if he is satisfied that at the time of passing the preliminary order a dispute likely to cause a breach of the peace exists concerning any land etc. Breach of peace mentioned in this Section is definitely not breach of mental peace of a party, rather, same means breach of peace in the locality. S.145 as provided under Chapter X CrPC, under heading "maintenance of public order and tranquility" itself suggests that breach of peace mentioned in this section necessarily means breach of peace in the locality, meaning thereby cognizance under S.145 can only be taken when there is breach of peace or tranquility in the locality. Merely because, there is dispute inter se two private parties qua immovable property, proceedings under S.145 cannot be drawn, unless magistrate is satisfied that this private dispute may disturb peace or tranquility of area.
9. It would be apt to take note of provisions contained under S.145 (1) CrPC as under:
::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 7"145. Procedure where dispute concerning land or water is likely to cause breach of peace.
(1) whenever an Executive Magistrate is satisfied .
from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute".
10. Careful perusal of aforesaid provision of law clearly suggests that essential ingredient for invoking provisions of S. 145 CrPC is that there should be apprehension of breach of peace due to dispute over any land or water or the boundaries thereof. It is quite apparent from the bare reading of aforesaid provision of law that Magistrate, while exercising aforesaid power, should be satisfied that there is likelihood of breach of peace. Apprehension of breach of peace must exist at the time of initiation of proceedings under sub-section (1) of S. 145 CrPC. True it is, that a Magistrate can not make initial order under sub-section (1) of S. 145 on apprehension that breach of peace may happen at future point in time, rather, Magistrate, at the time of ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 8 initiation of proceedings under S. 145 CrPC should be satisfied that there is likelihood of breach of peace on account .
of dispute between the parties. Similarly, it is not necessary that at the time of passing of final order, apprehension of breach of peace should continue or exist.
11. In this regard, reliance is placed upon Rajpati v.
Bachan AIR 1981 SC 18, wherein Hon'ble Apex Court has held as under:
"6. It is, therefore, manifest that a finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final order. Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceedings unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub-section (5) of s. 145 of the Code of Criminal Procedure. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub- s.
(6) of s. 145. As already indicated the contradictory stands taken by the parties clearly show that there was no question of the dispute having ended so as to lead to cancellation of the order under sub-section (5) of s. 145 nor was such a case set up by any party before the Magistrate or before the High Court. Further, it is well settled that under s. 145 it is for the Magistrate to be satisfied regarding the existence of a breach of the peace and once he records his satisfaction in the preliminary order, the High Court in revision cannot go ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 9 into the sufficiency or otherwise of the materials on the basis of which the satisfaction of the Magistrate is based. In R. H. Bhutani v. Miss Mani J. Desai & Ors.(1), this Court .
pointed out as follows:
"The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied on these two conditions the section requires him to pass a preliminary order under sub-s.
(1) and thereafter to make an enquiry under sub-s. (4) and pass a final order under sub-s. (6). It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. The enquiry under s. 145 is limited to the question to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties... The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate." (Emphasis ours)
7. In Hari Ram & Ors. v. Banwari Lal & Ors.(1) it was held that once a Magistrate finds that there is a breach of peace it is not necessary that the dispute should continue to exist at other stages of the proceedings also. In this connection, the High Court observed as follows:
"Of course, Magistrate can under sub-section (1) of s.
145, Criminal Procedure Code, assume jurisdiction only if he is satisfied that at the time of passing the preliminary order a dispute likely to cause a breach of the peace exists concerning any land etc. Once that is done the Magistrate is thereafter expected to call upon the parties concerned in such dispute to attend his court in person or by pleader and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The enquiry, therefore, after the initial satisfaction of the Magistrate and after the assumption of jurisdiction by him, has to be directed only as respects the fact of actual possession. At that time he has not to record a finding again about the existence of a dispute likely to cause a breach of the peace." (Emphasis ours) ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 10
8.. To the same effect is a decision of the Hyderabad High Court in Ramarao v. Shivram & Ors.(2) where Srinivasachari J. observed as follows:-
.
"As regards this contention I am of opinion that once the Magistrate has given a finding to the effect that there is apprehension of breach of peace and that he has jurisdiction to take proceedings under s. 145, Cr.P.C., he can continue the proceedings. It is not necessary that at each stage he should be satisfied that there exists an imminent apprehension of breach of peace." (Emphasis ours)
9. We find ourselves in complete agreement with the observations made by the Punjab and Hyderabad High Courts, extracted above, which lay down the correct law on the subject.
10.
Assuming, however, that there was an omission on the part of the Magistrate to mention in his final order that there was breach of the peace, that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate, particularly when there is nothing to show in the instant case that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court. It was therefore not correct on the part of the High Court to have interfered with the order of the Magistrate on a purely technical ground when the aggrieved party had a clear remedy in the Civil Court.
11. For these reasons therefore, we are satisfied that the order passed by the High Court is legally erroneous and cannot be allowed to stand. The appeal is accordingly allowed. The order of the High Court is set aside and the order of the Magistrate is confirmed."
12. S. 145 CrPC clearly provides that the magistrate before initiating proceedings, should be satisfied that dispute ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 11 regarding immovable property exists and such dispute is likely to cause breach of peace, and once he/she is satisfied .
of aforesaid two conditions, he/she shall proceed to pass preliminary order under sub-section (1) of S. 145 and thereafter make inquiry under sub-section (4) and pass final order under sub-section (6) and it is absolutely not necessary at the time of passing of final order for him/her to record that apprehension of breach of peace continues or exists. In the aforesaid judgment, Hon'ble Apex Court has held that inquiry under S. 145 is limited to the question as to who was in actual possession on the date of passing of preliminary order, irrespective of rights of the parties and High Court or Sessions Court, while exercising revisionary powers, can not go into question of sufficiency of the material relied upon by the Magistrate to base his/her satisfaction.
13. While buttressing his argument, Mr. Bhupender Gupta, learned Senior Advocate placed reliance upon judgment rendered by this Court in Digamber Jai Sabha Simla and anr. v. State of Himachal Pradesh and anr., Cr.
Misc. Petition Nos. 111 and 143 of 1983 decided on 22.6.1983, judgment passed by Gauhati High Court in Ashok Kumar Ghose v. Khetra Mohan Das, Cr. Revn. No. 171 of 1989, decided on 2.4.1990 and judgment passed by Patna ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 12 High Court in Ram Pravesh Singh v. The State of Bihar and Ors., Criminal Miscellaneous No. 36255 of 2013, decided .
on 4.1.2018. While inuring his case, Mr. Gupta, learned Senior Advocate argued that S.145 cannot be used to bring civil dispute within the ambit of criminal law with the object to establish possession on a property and mere apprehension of breach of peace between two private parties is not sufficient to draw proceedings under S. 145 of the Act ibid.
14. Very object and purpose of S.145 is definitely not to provide parties with an opportunity of bringing their civil disputes before a Criminal Court, or maneuvering for possession for the purpose of subsequent civil litigation and the real object of this provision is to arm the Magistrate with an additional weapon for maintaining peace within his/her area. S. 145 casts an onerous duty upon the Magistrate to guard against abuse of provisions by persons using it with the object of getting possession of property while attempting to drive the other side to a Civil Court. Aforesaid provision empowers a Magistrate to proceed under S. 145 CrPC, if in his/her opinion, dispute, if any, inter se, parties qua the immovable property is likely to cause breach of peace, either on the report of a police officer or upon other information and his/her satisfaction must reflect in the order passed by ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 13 him/her, specifically mentioning therein grounds for his satisfaction.
.
15. In this regard, reliance is placed upon a judgment rendered by the Madras High Court in Indira v. Vasantha 1991 Crl. L.J. 1798, wherein it has been held as under:
"9. The jurisdiction conferred upon an Executive Magistrate under S. 145 of the Code of Criminal Procedure is an exceptional one and the provisions of the section should have to be strictly followed while taking action under it. The object of the section is not to provide parties with an opportunity of bringing their civil disputes before a Criminal Court or of manoeuvring for possession for the purpose of the subsequent civil litigation, but to arm the Magistrate concerned with power to maintain peace within his local area. Therefore, a duty is cast on the Magistrates, to guard against abuse of provisions by persons using it with the object of getting possession of property while attempting to drive the other side to a Civil Court. The very jurisdiction of the Magistrate to proceed under this section, arises out of his satisfaction, of a dispute likely to cause breach of peace either on a report of a Police Officer or upon other information, which satisfaction must be reflected in the order which he should make in writing, stating the grounds of his satisfaction. This order which is the sine qua non of the proceedings, initiated under S. 145, Cr.P.C., must require the parties concerned in such dispute, to attend his Court in person or by pleader on a specified date and time, and to put in written statements of the irrespective claims as respects the facts of actual possession of the subject of dispute. After the passing of the preliminary order, a copy of the order shall be served in the manner provided for service ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 14 of summons by the Criminal Procedure Code, upon such person or persons as may be directed by the said Magistrate and at least one copy should be affixed at some conspicuous .
place at or near the subject of dispute. This service of the copy of the order is provided under S. 145(1) and (3) together, it is apparent that the service of a separate summons is not contemplated and the preliminary order itself shall have to be served in the same pattern as service of summons. This Court on more than one occasion, had held, that under S. 145(1), Cr.P.C., a Magistrate having jurisdiction, shall make an order in writing that he was satisfied either from a police report or other information that a dispute likely to cause breach of peace existed, and the grounds of his satisfaction should be stated clearly to indicate the application of the mind of the Magistrate in passing the preliminary order. The provision of making the order in writing after initial satisfaction and stating the grounds of his satisfaction have been held to be mandatory.
Though the Magi rate was not obliged to elaborately set out the entire details of the information received by him, the preliminary order, on the face of it, should set out the grounds of the Magistrate being so satisfied or at least employ language to similar effect so as to indicate that he had applied his judicial mind to the information, in coming to the conclusion that there was inexistence a dispute, which dispute was likely to cause breach of peace, necessitating initiation of proceedings under S. 145, Cr.P.C. If there was absolutely nothing in the preliminary order showing expressly the grounds of his being so satisfied, which are in the nature of conclusions arrived at by him, on the report or information placed before him, it would be impossible for the parties called upon to put in their claims before him, to predicate as to what had led the Magistrate to ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 15 pass such an order and to make their effective representations before him. This legal position is apparent from the decisions of this Court in Nagammal v. Mani (1966 .
LW (Cri) 101), Peria Mannadha Gounder v. Marappa Gounder (1968 LW Cri 179), Manikyaraja Ballal v. K. Jayaraja ballal (1981) LW Crl 10) and Janaki Ramachandran v. State, 1988 LW Cri 147 : 1989 Cri LJ 590. On facts, has already been noticed, that except summons and memo dated 4-7-1989 and 20-7-1989 there is no material on record, to indicate the promulgation of a preliminary order as contemplated under S. 145(1), Cr.P.C., which as stated earlier, is the foundation, for the exercise of jurisdiction by the Executive Magistrate."
10. The learned counsel for the respondents relied upon the judgment of the Full Bench of the Allahabad High Court in Kapoor Chand v. Suraj Prasad, AIR 1933 All 264 : (34 Cri LJ 414) for the proposition that non-compliance with strict letter of law in formulating the order under S. 145(1), Cr.P.C., would not prevent the Magistrate from exercising jurisdiction to proceed with the case and that any defect in the procedure whether of illegality or irregularity was cured by S. 537, Cr.P.C. (new S. 465, Cr.P.C.) if there was no prejudice. As stated earlier, it is his submission that reference in the summons and memo dated 4-7-1989 and 20-7-1989 to the dispute regarding house No. 7/ 16 and proceedings having been initiated under S. 145, Cr.P.C., would be sufficient to presume, not only application of mind by the Magistrate to the facts placed before him, but also his satisfaction arrived at on the materials so placed. The law laid own by the same High Court Parmatma v. State, and, Narain Singh v. Mst. Suraj Kishore Devi, , the view of the Patna High Court in Wazir Mahton v. Badri Mahton, , the dictum of the Rangoon High Court and the view of the ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 16 Judicial Commissioner, Peshawar enunciated in MG. PO. LON. v. MG. BA ON (26 Cri LJ 324) and Municipal Committee, Kohat v. Piari (48 Cri LJ 159) respectively are to .
the same effect. In all these cases the Courts were considering the effect of the lack of a preliminary order or defects in the said order and held that they were only irregularities curable under S. 537, Cr.P.C. (new S. 465, Cr.P.C.) on the ground that no prejudice had been caused to the parties in each one of those cases. This Court in Janaki Ramachandran v. State (1988 LW Crl 147) held that requirements for passing a preliminary order under S. 145(1), Cr.P.C., was the satisfaction of the Executive Magistrate about the information with regard to breach of peace which grounds ought to be apparent on the face of the order itself and non-compliance with those legal requirements constituted an illegality affecting the very jurisdiction of the Magistrate, which could not be cured as an irregularity under S. 465, Cr.P.C. The difference between illegality and irregularity need not have to be gone into, though S. 465, Cr.P.C. takes within its fold only irregularity for two reasons, one is that I would prefer to follow the law laid down by this Court and the other is, in any event, the prejudice to the petitioners, leading to the failure of justice is apparent in these proceedings, in view of non recording of evidence and consideration of the same as provided under S. 145(4), Cr.P.C.
11. A reference was also made to the decision of the Privy Council in Abdul Rahman v. King Emperor, AIR 1927 PC 44 : (28 Cri LJ 259) to justify the approach of the Allahabad High Court and some other High Courts, holding that S. 537, Cr.P.C. would cure irregularities, if any, in the passing of the preliminary order. The Privy Council was concerned with a criminal trial. It was held therein that no serious ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 17 defect in the mode of conduct of a criminal trial could be justified or cured by the consent of the Advocate of the accused. While dealing with the provisions of S. .
360, Cr.P.C., as it then existed, relating to reading over of the depositions to witnesses to obtain an accurate record and to provide an opportunity to the witness to correct the words which occurred or the clerk had taken down and not to enable the accused or his counsel to suggest corrections, the Privy Council held that a more non-compliance of the provisions of S. 360, Cr.P.C., was not enough to quash the conviction, unless it was accompanied by occasioning of any failure of justice. In that context S. 537, Cr.P.C., was referred to.
12. The Privy Council in Subramania Iyer v. Emperor (25 Madras 61) observed as follows :
"The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity."
The view of the Privy Council in both aforementioned cases would be sufficient to steer clear of a "curable irregularity", since not only illegality is patent, but also prejudice to the petitioners is apparent.
13. The impugned order of the Sub-Divisional Magistrate does not disclose the documents placed before him by either party or his consideration of the same, to arrive at a conclusion. List of documents has not been appended to the order and the order does not also indicate any marking given to the documents produced by the respondents. Section ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 18 145(4), Cr.P.C., enables both the parties to adduce oral and documentary evidence and the Magistrate is bound not only to receive all such evidence as may be produced, but also is .
empowered to take such further evidence, if any, as he thinks necessary. The Magistrate under the 1974 Code cannot dispose of a proceeding on the basis of affidavits and, therefore, the evidence of witnesses will be essential for deciding the question of possession. The evidence contemplated includes both oral and documentary. In order to enable parties to adduce evidence, reasonable opportunity has to be given to produce documents and witnesses and the Magistrate will also have a duty to summon such witnesses as may be required by either party. This procedure prescribed under sub-sec. (4) must be followed, for it is mandatory and the oral evidence adduced will have to be recorded and the documents properly proved according to rules of evidence. After the production of the oral and documentary evidence, the Magistrate will have to decide the question of possession on the evidence placed before him, which necessarily implies discussion of evidence placed before him.
16. In the case at hand, dispute inter se parties is purely a civil one, rather rights of parties stood crystallized qua possession,, as has been taken note herein above, as such, complainant if is aggrieved on account of non-
compliance of decree passed by civil court, ought to have filed appropriate proceedings in competent Court of law, but definitely not under S.145 CrPC with an intent to present ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 19 civil dispute inter se him and respondent before a criminal court for possession of premises in question.
.
17. At the cost of repetition, it may be again observed that to initiate proceedings under S.145 CrPC, there are three requirements viz. (1) there must be a real breach of peace inviting such proceedings; (2) there must be material on record to prove the actual breach of peace; and (3) the magistrate shall form a subjective satisfaction to initiate such proceedings. Apart from above executive magistrate is also required to ensure /see that proceedings sought to be initiated under S.145 CrPC are actually not used by the party concerned for settlement of civil dispute for establishing possession of the property in dispute because very object of S.145 CrPC is merely to prevent breach of peace.
18. If S. 145 CrPC is read in its entirety, it provides for different steps/stages to be followed by the Magistrate concerned, while adjudicating upon the Kallandra placed before him/her or any other information received by him/her to the effect that a dispute exists concerning any land, water or boundaries thereof, within his local jurisdiction, which is likely to cause breach of peace. Sub-section (1) thereof enjoins a duty upon the Magistrate to make an order in writing stating grounds of his being so satisfied that breach ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 20 of peace exists on account of dispute between the parties concerning any land or water or boundaries thereof, after .
having received Kallandra/report or from any other source.
While passing order under Sub-section (1) of S. 145, Magistrate is required to specifically record findings that dispute inter se parties is likely to cause breach of peace.
19. Similarly, Sub-section (3) casts a duty upon the Magistrate to cause service of summons on the parties concerned, after his/her having taken cognizance under Sub-
section (1) of S. 145 CrPC. Sub-section (4) enables both the parties to adduce oral and documentary evidence and Magistrate is not only bound to receive all such evidence as may be adduced, but Sub-section (4) also empowers him/her to take such further evidence, if any, as he/she thinks necessary. Sub-section (5) of S. 145 CrPC provides that in case, one of the parties to the dispute is able to persuade the Magistrate that no dispute exists, the Magistrate shall cancel the preliminary order passed by him/her under Sub-section (1) and also stay further proceedings subject to such cancellation but order of the Magistrate passed under Sub-
section (1) of S. 145 CrPC shall be final.
20. Sub-section (6)(a) of S. 145 CrPC empowers the Magistrate to pass an order declaring one party to be entitled ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 21 to possession on the basis of evidence adduced on record by the respective parties, in terms of Sub-section (4) of S. 145 .
CrPC. Sub-section (6)(a) of S. 145 CrPC clearly provides that Magistrate can pass an order declaring a party to be entitled to possession thereof, until evicted therefrom in due course of law. Provisions contained under Sub-section (6)(a), further empower the Magistrate to restore the possession to a party entitled to same.
21. Leaving everything aside, in the case at hand there is no specific allegation, if any, against the respondent Panchhi Ram in the complaint filed under S.145 because, as has been taken note herein above, complainant in para-5 of the application has alleged that some persons illegally entered and trespassed into premises posing as owners.
Similarly, report submitted by SHO in response to query raised by SDM also nowhere stated anything specific about respondent Panchhi Ram rather, it has been stated that the nephew of Panchhi Ram was found to be involved in the incident. Since there is no specific allegation against respondent with regard to forcible dispossession, proceedings if any, under S.145 CrPC could not have been otherwise initiated against him.
::: Downloaded on - 29/09/2019 03:59:38 :::HCHP 2222. Merely mentioning of name of nephew of Panchhi Ram is not sufficient to conclude that forcible dispossession if .
any of the complainant came to be done at the behest of Panchhi Ram, rather complainant ought to have specifically mentioned the names of the persons in his complaint so that factum with regard to forcible dispossession, if any, of complainant by respondent Panchhi Ram through his nephew could be ascertained.
23. Consequently, in view of above, I find no merit in the present petition, which is accordingly dismissed. Order passed by Sub Divisional Magistrate, Manali is upheld.
Pending applications, if any, stand disposed of.
(Sandeep Sharma ) Judge.
September 9, 2019 Vikrant ::: Downloaded on - 29/09/2019 03:59:38 :::HCHP