Patna High Court
Jogeshwar Mahton And Ors. vs Uchit Mahton And Ors. on 15 January, 1965
Equivalent citations: AIR1965PAT469, 1965CRILJ664, AIR 1965 PATNA 469, 1965 BLJR 239
ORDER Tarkeshwar Nath, J.
1. This is a reference by the first Additional Sessions Judge, Monghyr, for revising the order dated the 14th December, 1963, and the order dated the 4th January, 1964. passed by the Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure.
2. The facts giving rise to this case are these. On the police report, dated, the 16th June, 1962, that there was dispute likely to cause a breach of the peace between the first and second parties in respect of 8 kathas 19 dhurs of land bearing plots Nos. 179 and 185 of holding No. 110, in village Sarauna, a proceeding under Section 144 of the Code of Criminal Procedure was drawn up on the 5th July, 1962, and both parties were restrained from going on the disputed land. They were asked to show cause and they filed petitions showing cause. Some documents as well were filed in that proceeding.
This proceeding was, however, converted into one under Section 145 of the Code by or der dated the 3rd September, 1962. On the same day, the Magistrate attached the land in dispute till the disposal of the proceeding. The parties were asked to file written statements; and the second party filed written statement on the 13th May, 1963. On the 19th July, 1963. there was a bid for the settlement of the disputed land and it was knocked down in favour of one Phagu Mahton as his bid was the highest one for a sum of Rs. 14/-. The bidder was to deposit one-fourth of the bid money immediately and the rest by the 25th July, 1963. Thereafter there were several adjournments for enabling the members of the first party to file written statement but they did not choose to file a written statement. On the 29th November, 1963, the case was transferred to the file of Mr. J.N. Singh. Magistrate. 1st Class, for disposal, fixing Hie 3rd of December. 1963, as the next date. The transferee Magistrate received the record on the 2nd December, 1963 and directed that the case should be put up on the date fixed. On the 3rd December. 1963, both parties were absent and thus it was directed that the rase should be put up on the 14th December, 1963, by which time both parties should file written statements and affidavits etc. On the 14th December. 1963, the Magistrate recorded the following order:-
"Both parties absent. Parties are not keen about the proceeding and hence it is dropped and the land attached is released".
Thereafter, there is another order dated the 4-1-1964. indicating that the second party had filed a petition to recall the order dated 14-12-1963 and to restore the proceeding; but this petition was rejected on that date. Being aggrieved by these orders, second party filed an application before the Sessions Judge for making a reference to this Court and the Additional Sessions Judge has made this reference for quashing those orders.
3. The Additional Sessions Judge has taken the view that once a proceeding under Section 145 of the Code of Criminal Procedure was drawn up, the Magistrate had no jurisdiction to drop it on account of the absence of the parties and the Magistrate had to either conclude the enquiry with regard to possession or to attach the land in question under Section 146 of the Code, or to drop the proceeding only when he was satisfied that the dispute no longer existed between the parties concerned.
4. Learned Counsel appearing in support of the reference contended that the order of the learned Magistrate dropping the proceeding on account of the absence of parties was erroneous and the magistrate did not appreciate properly the scope of the proceeding under Section 145 and the order which he could pass in that proceeding. Section 145 provides the procedure which has to be followed when the Magistrate is satisfied that a dispute exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction and such dispute is likely to cause a breach of the peace. Where he is so satisfied, he has to pass a preliminary order under Sub-section (1) of Section 145 and later on he must make an enquiry under Sub-section (4).
In the present case, the Magistrate had made the preliminary order on the 3rd September, 1962, and he had attached the land in dispute till the disposal of the proceeding under Section 145. Notices were served on the parties concerned and they were asked to file then written statements. Second party filed the written statement but the first party did not. Then comes the relevant Sub-section (4) which provides that "the Magistrate shall then, without reference to the merits of the claims of any such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the enquiry as far as may be practicable within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject .". It is open to a party to file a written statement; but it can choose not to put in any written statement, If, however, a written statement is filed, the Magistrate has to consider it. Similarly, a party may file documents and affidavits and, if they are filed, the Magistrate has to take them into account for deciding the question of possession. In the same way, if the parties choose to address the Magistrate and advance any argument they have to be heard before determining the question of possession It appears from the facts and circumstances of this case that the second party had already filed a written statement in the proceeding under Section 145 and had filed certain documents while showing cause in the proceeding under Section 144. The 3rd of December, 1963, was the date fixed in this proceeding but both parties were absent on that date and the Magistrate adjourned the case to the 14th December. 1963 On the 14th of December, 1963, as well both parties were absent and, for that reason, the Magistrate dropped the proceeding and released the land from attachment. The precise question for consideration is as to whether this order is a valid one.
The existence of a dispute likely to cause breach of the peace is a condition precedent to give the Magistrate jurisdiction to institute proceedings under Section 145; hut if, in the course of such proceedings, the Magistrate finds at any stage that there is. or has been, no such dispute, his jurisdiction ceases and he should cancel the preliminary order. Sub-section (5) of Section 145 provides for a special case in which the parties to the proceeding, and any other person interested, have been given the right to show that no such dispute exists or existed. It may be that the Magistrate may be satisfied suo motu, on proper materials, that no further dispute exists; and if he is satisfied about that, it is open to him to drop the proceeding. This is one course which he can adopt. The second course is that whatever materials are on the record have to be considered by him and he has to decide the question of possession one way or the other. There is still another course open to him. If he finds that the materials on the record are not sufficient for determining the question of possession then he has to resort to the provisions of Section 146 of the Code of Criminal Procedure, Simply because the parties were absent and they did not take any step on the two dates fixed, the Magistrate was not right in dropping the proceeding. The Magistrate ought to have conside red the written statement filed by the second party and the documents which were on the record and then made up his mind as to whether he was able to determine the question of possession in respect of the disputed land. It may be relevant to notice some of the decisions which are helpful. The decision which is on all fours is in the case of Venkalegowda v. Appajigowda, AIR 1952 Mys. 4.
The proceeding in that case was instituted on the 18th November, 1947, but it was dropped in March 1951 on the ground that both the parties were absent. It was urged that the Magistrate had no jurisdiction to drop the proceeding under Section 145 of the Code of Criminal Procedure It was observed that if the parties did not appear or if they appeared and did not file written statement within the time fixed or within such time as the Court in its discretion extended, nothing came in the way of the Court passing an order straightaway under Section 146 of the Code, as in a case like that he was unable to satisfy himself as to which of the parties was in possession of the subject matter of the dispute. I may quote the following::--
"It is clear that in this case it was open to the learned Magistrate to have passed an order under Section 146 Criminal P.C. Considering that both the parties were absent that would have been a proper order which he had jurisdiction to pass, but the Magistrate acted illegally in dropping the proceedings on the ground that the parties were absent. This he can only do under Clause (5) of Section 145 Criminal P. C., that is, when any of the parties show that no such dispute as contemplated in Clause (1) of Section 145 Criminal P. C., exists or has existed."
The revision petition in that case was allowed, the order of the learned Magistrate was set aside and the case was sent back to his file for disposal. In Saslu Sahu v. Naihuni Thakur, 6 Pat LT 258 (AIR 1921 Pat 689), the proceeding under Section 145 had gone on for a sufficiently long time, witnesses were examined, arguments also appeal to have been heard and the judgment was evidently reserved. All these had happened up to June 1923. The Sub-Divisional Magistrate forgot all about that case until the 27th of March, 1924, when he was under orders of transfer, and then, for the first time, he recollected that he had not passed any final order in that case. Accordingly, on the 27th of March, 1924, he disposed of the case with the order that a long time had elapsed and he did not think that any breach of the peace was likely and thus he struck otf that case. The second party to that proceeding went in revision before the learned Sessions Judge and he made a reference to this Court recommending for the setting aside of that order dated the 27th March, 1924, as being without jurisdiction. Kulwant Sahay, J. observed that a proceeding under Section 145 of the Code of Criminal Procedure could be terminated in three ways, viz., (1) by passing an order under Clause (5) that a Magistrate was satisfied on proper materials that there was no apprehension of any breach of the peace; or (2) by passing a final order under Clause (6) in favour of one of the parties, or (3) by passing an order-under Section 146. In that case, the learned Magistrate had not adopted the procedure laid down by the law and hence the order dated the 27th March. 1924, was set aside as being illegal.
In Safdari Begam v. Ashfaq Hussain Khan, 1950 All LJ 292, a preliminary order under Section 145 was passed calling upon the parties to file written statements in support of their claims of possession. The date fixed for filing of the written statements was the 22nd of May, 1948. but when the case was called out on that date. the applicant was absent while the opposite party was present. The Magistrate dismissed the applicant's complaint 'in default' and released the house from attachment. It was held that an application to a Magistrate to take cognizance of a dispute under Section 145 was not a complaint and it could not be dismissed for default under any provision contained in Sections 145 to 148 of the Code of Criminal Procedure. Desai, J, (as he then was) observed as follows:-
"So long as one party is present and produces evidence there is absolutely no difficulty in the magistrate's proceeding to decide the question of possession The difficulty arises when both parties are absent and there is no evidence, on the question of possession. So long as there is some evidence the magistrate can decide the question, but he cannot decide when there is absolutely no evidence. In that event it is open to him to get a local inquiry by a subordinate Magistrate as provided in Section 148, though this course has been objected to in some authorities. In any case, it is open to him to say that in the absence of evidence he is unable to satisfy himself as to which of the parties was in possession and attach the properly under Section 146".
5. The position thus is that once there is an initial order under Section 145 of the Code of Criminal Procedure and the parties have been asked to file their written statements, documents and affidavits, the proceeding can be terminated in a manner prescribed by law only. The Magistrate was initially satisfied about the existence of a dispute between the parties and that led him to draw up a proceeding under Section 145. Simply because the parties did not choose to appear in Court, that would not mean that the dispute between them had come to an end. If they failed to file any documents or affidavits, or advance any argument in support of their respective claims, and the Magistrate found it difficult to decide the question of possession, he had to adopt the procedure laid down in Section 146 of the Code of Criminal Procedure. If, on the other hand, he was able to make up his mind about the question of possession, then he had to determine it and find the possession of one party or the other on the materials available on record. Once he had assumed a jurisdiction by reason of an apprehension of a breach of the peace, he could not divest himself of that jurisdiction until he was satisfied that there was no apprehension. I am thus of the view that the order dated the 14th, December, 1963, dropping the proceeding for the reason assigned by the Magistrate is without jurisdiction and it must be set aside. Since this order is set aside, the other order dated the 4th January, 1964, rejecting the petition for restoration of the proceeding loses its force.
6. In the result, the reference is accepted, the orders dated the 14th December. 1963, and the 4th January, 1964, are set aside and the case is sent hack to the Magistrate for an early disposal in accordance with law.