Patna High Court
Abdul Shakur vs Abu Sayeed Alias Abdul Mian on 13 January, 1925
Equivalent citations: 86IND. CAS.806, AIR 1925 PATNA 593
JUDGMENT Jwala Prasad, J.
1. This is a Reference by the Sessions Judge of Patna under Section 438 of the Cr. P.C. recommending that the order of the Sub-Divisional Magistrate of Barh dated the 25th October 1924 staying proceedings under Section 145 and cancelling the came under Clause 5 of that section be set aside. The lands in dispute are claimed by both the parties as having acquired the same from the tenants recorded in the Survey Record of Rights. The first party claimed the lands as having been acquired by means of purchases made prior to the acquisition thereof by the second party. The dispute between the parties led to a criminal case instituted by the first party against the members of the second party under Sections 143 and 379 of the Indian Penal Code, with respect to the crops on lands said to have been forcibly removed by the second party. The Magistrate who tried the case acquitted the accused, that is, the members of the second party, holding that they were in possession of the lands and directed the complainant to pay compensation to the accused under Section 250 of the Cr. P.C. The order directing compensation to be paid by the complainant was set aside by the Additional District Magistrate of Patna. He did not entirely agree with the Magistrate, who acquitted the accused, in his finding as regards the prosecution case of possession over the lands in dispute. The complainant then put in a petition before the Sub-Divisional Magistrate of Barh stating that emboldened by the acquittal in the theft case the members of the second party are prepared to commit serious breach of the peace and invoked the help of the Magistrate by asking him to institute proceedings under Section 145 of the Cr. P.C. The Sub-Divisional Magistrate after considering the judgment of the Trial Court in the theft case and of the Additional District Magistrate who set aside the order as to compensation being paid by the complainant, and the allegations made in the petition of the complainant, held that there was a dispute between the parties regarding the actual possession of the lands in question and that the dispute is likely to cause breach of the peace. Accordingly he directed proceedings to be initiated under Section 145, Cr. P.C., and drew up the necessary proceedings. The case was eventually transferred to the file of the Deputy Magistrate of Barh. The second party filed a petition before him in the shape of a written statement stating that by reason of the decision of the Magistrate in the theft case their possession over the properties in dispute was upheld and consequently there did not exist any dispute as to possession with respect to the lands in question and hence the proceedings started under Clause 1 of Section 145 be stayed and cancelled. The Deputy Magistrate upheld this contention and directed further proceedings under Section 145 to be stayed Against this order the first party moved the Sessions Judge of Patna who has referred the case to this Court recommending that the order of the Deputy Magistrate be set aside and the proceedings started under Section 145 by the Sub-Divisional Magistrate on the 1st October 1924 be continued until the question is determined by a decision under Clause 4 of that section. Mr. Akbari on behalf of the second party opposes this Reference and contends that this Court should not revive the proceedings under Section 145 which have been cancelled by the Deputy Magistrate under Clause 5 of that section. It appears to me that the Deputy Magistrate is wrong in construing the decision of the Magistrate in the theft case as putting an end to the dispute between the parties tending to a breach of the peace. That decision no doubt shows that in the opinion of the Magistrate the second party was in possession of the lands in dispute. The decision is not of a competent Civil Court and is not capable of enforcement by execution of the same so as to prevent a breach of the peace. The first party has not accepted and is not bound to accept the decision of the Magistrate as to possession passed in the theft case. The first party has no right to challenge in appeal or otherwise the finding of the Magistrate as to possession given in the theft case, for against an acquittal there is no appeal by a private party. As a matter of fact he disputed the correctness of the finding in an appeal against the order of the Magistrate directing compensation to be paid and succeeded in obtaining from the Additional District Magistrate an expression of opinion which at least threw doubt as to the correctness of the finding of the Magistrate. Such a decision is not conclusive as to possession and can in no sense be said to have settled the dispute between the parties, so as to put a stop to the trouble and consequent breach of the peace. The object of Section 145 is to finally terminate, the dispute between the parties so far as the Criminal Court is concerned so as to effectively put a stop to any breach of the peace. It is with this object that the decision of the Magistrate under Section 145 is declared to be final and conclusive until it is set aside by a competent Civil Court and the rights of the parties are determined by a competent Court. If the Deputy Magistrate thought that finding of the Magistrate in the theft case was a pertinent finding as to possession, the best course for him was to make the enquiry as to possession upon the proceedings started by the Sub-Divisional Magistrate and to treat that decision as a piece of evidence of possession quantum valebat in the case. The important words in Clause 5 of Section 145 which would entitle a Magistrate to stay proceedings already started under Section 145 are that "no such dispute as aforesaid exists"; that dispute is as to the possession of the subject matter in question. A party may disclaim the lands in dispute and thus show that there is no cause for any dispute and consequently no necessity for continuing an enquiry under Section 145. No such thing has happened in the present case. One of the parties may show that the title of the parties to the lands in dispute is already under investigation by a competent Civil Court and consequently there is no necessity for putting the parties to trouble and expenses in continuing an enquiry under Section 145. Such a contingency has not arisen in this case. This and similar other circumstances are contemplated in Clause 5 of Section 145 so as to entitle a Magistrate to stop the proceedings already started. The existence of a decision incidentally arrived at by a Criminal Court, or for the matter of that, even by a Civil Court, does not per se cause a cessation of the dispute between the parties as to possession. Therefore, the Deputy Magistrate in the present case stopping the proceedings under Clause 5 of Section 145 acted under a misapprehension of the effect of the decision of the Magistrate in the theft case as to the possession of the parties with respect to the lands in dispute. Numerous authorities have been cited on both sides. Palani Goundan v. Kulandavelu Goundan 72 Ind. Cas. 541 : (1922) M.W.N. 484 : (1922) A.I.R. (M.) 437 : 43 M.L.J. 716 : 24 Cr. L.J. 429, Kedar Nath Chaubey v. Jaleswar Ram Tewari 72 Ind. Cas. 883 : 4 P.L.T. 248 : (1923) A.I.R. (Pat.) 364 : 1 Pat. L.R. 166 Cr; 24 Cr. L.J. 467, Rambarai Rai v. Sagina Rai 75 Ind. Cas. 363 : 4 P.L.T. 333 : (1923) A.IR (Pat.) 437 : 24 Cr. L.J. 939, Parmessar Singh v. Kailaspati 35 Ind. Cas. 801 : 1 P.L.J. 338 : 17 Cr. L.J. 369 : 1 P.L.W. 95 : (1917) Pat. 1, Khubi Singh v. Darbari Mahton 62 Ind. Cas. 177 : 2 P.L.T. 267 : (1921) Pat. 167 : 24 Cr. L.J. 481, and Deonandan Singh v. Ramajodhya Singh 41 Ind. Cas. 139 : 2 P.L.W. 25 : 18 Cr. L.J.763. I have considered those decisions and I am a party to some of them; The view that I have taken in this case is supported by the principles enunciated in those decisions and is not in conflict with any of them.
2. The result is that I accept the Reference as recommended by the learned Sessions Judge and set aside the order of the Deputy Magistrate of Barh dated the 25th October 1924, the result of which will be that proceedings started under Section 145, Cr. P.C., will continue and will be disposed of in accordance with law.
3. As Mr. Mathur has already expressed his opinion in the case it is desirable that the case should either be tried by the Sub-Divisional Magistrate himself or by some other competent Magistrate than Mr. Mathur.