Patna High Court
Mohammad Abbas And Anr. vs Mohammad Mustaqim And Ors. on 29 July, 1969
Equivalent citations: AIR1970PAT332, 1970CRILJ1252, AIR 1970 PATNA 332
ORDER D.B. Singh, J.
1. This application In revision has been preferred against the preliminary order of the Subdivisional Magistrate passed in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').
2. Petitioner No. 1 is one of the members of the second party and petitioner No. 2 is one of the members of the third party, whereas opposite party Nos. 1 to 3 are the members of the first party and opposite party Nos. 4 to 14 are also members of the second party along with petitioner No. 1. Opposite Party Nos. 15 to 22 are the members of the third party and the remaining opposite party Nos. 23 to 25 are the members of the fourth party in the said proceeding.
3. The dispute related to a land measuring 21 acres 95 decimals in various plots fully described in Schedules 1, 2 and 3 of the petition which has been filed in this Court.
4. In order to appreciate the points Involved in this application it will be necessary to state briefly the facts. Opposite Party Nos. 1 to 3 filed a petition on 8-7-1968 in the Court of the Subdivisional Magistrate for drawing up a proceeding under Section 144 of the Code against the petitioners as well as other members of the second, third and fourth parties claiming 1/3rd share in the disputed land. The Subdivisional Magistrate after calling for the report drew up a proceeding under Section 144 of the Code on 29-7-1968. On 23-9-1968 he passed the impugned order under Section 145 of the Code to this effect:--
"After hearing the lawyers of both the parties and on perusal of their show cause, I am satisfied that there is a bona fide land dispute between the parties. I, therefore, draw up a proceeding under Section 145, Criminal P. C. to decide the factum of possession once for ever. The subject of dispute is attached under Section 145(4) Criminal P. C. Parties to file written statement by 26-10-1968."
5. Learned counsel appearing on behalf of the petitioners raised the following points for consideration by this Court-
(i) The order does not mention that there was an apprehension of breach of peace.
(ii) In the order the entire land has been attached under Section 145(4) of the Code, whereas the subject-matter of dispute is only with respect to 1/3rd share of the land.
(iii) There was already a proceeding under Section 145 of the Code in respect of the land contained under Schedule 2 of the application which was later compromised between the parties on 29-8-1962 which could not have been agitated in the present proceeding.
6. Learned counsel has drawn my attention to Clause (1) of Section 145 of the Code and contended that the jurisdiction of the Magistrate to institute proceeding is mainly based on his satisfaction that a dispute is likely to cause breach of peace. When he proceeds under Section 145 of the Code without being satisfied as to the existence of the dispute likely to cause breach of the peace, he acts without jurisdiction. According to the learned Counsel Section 537 of the Code cannot cure the irregularity. He submitted that not only in the impugned order but also in the order under Section 144 of the Code the Magistrate omitted to mention regarding the apprehension of breach of peace. He referred to the order dated 29-7-1968 wherein the Magistrate ordered:--
"............I am satisfied with the police report. Draw up proceeding under Section 144, Criminal P. C. against both the parties..,............"
7. In order to support his contention learned counsel relied on a decision of the Supreme Court in R. H. Bhutani v. Miss Mani J. Desai, AIR 1968 SC 1444 wherein their Lordships while dealing with Section 145 of the Code observed in paragraph 8 at page 1447:--
"The object of Section 145, no doubt is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the Court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent Court. 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 of these two conditions, the section requires him to pass a preliminary order under Sub-section (1) and thereafter to make an enquiry under Sub-section (4) and pass a final order under Sub-section (6).........."
In my opinion, the contention of learned counsel is well founded, -as Section 145 of the Code also clearly indicates that for initiating the proceeding the Magistrate has to be satisfied that a dispute is likely to cause breach of the peace.
8. However, learned counsel appearing on behalf of opposite party Nos. 1 to 3 urged that the said omission in the order is a mere irregularity. He referred to a decision of this Court in Wazir Mahton v. Badri Mahton, AIR 1950 Pat 372. But, in my opinion, this case does not support his contention as his Lordship Das, J. (as he then was) in that case was considering the grounds of satisfaction1 of the Magistrate while initiating the proceeding under Section 145 of the Code, and observed that mere failure to state the reasons why the Magistrate was satisfied that there was an apprehension of breach of the peace is nothing more than an irregularity. It is true, as also held in AIR 1968 SC 1444 (Supra), that the High Court in exercise of its revisional jurisdiction would not go into the question of sufficiency of material which has satisfied the Magistrate. In the instant case, the Magistrate has not mentioned at all that there was any apprehension of breach of peace, in the order, which, in my opinion, is fatal. If he would have mentioned that, I would not have questioned the grounds of his satisfaction, Learned counsel for the opposite party further drew my attention to the notice which was sent to the parties in pursuance of the said order. In the notice it is clearly stated that there was apprehension of breach of peace. But, in my opinion, the contents of the notice is the result of a ministerial act, and that will not cure the defect in the order. The order itself must indicate that the Magistrate was satisfied that the dispute was likely to cause a breach of the peace. In that view of the matter the contention of learned counsel for the petitioners raised Under point No, (i) has got to be accepted.
9. Now I turn to point No. (ii). Learned counsel for the petitioners contended that it is admitted case of the parties that the dispute related only to the 1/3rd share of the entire land mentioned in Schedules 1, 2 and 3 of the petition referred to above. It is well established that the subiect matter of dispute must be ascertained definitely and described clearly in the preliminary order, before the property is attached under the third proviso to Sub-clause (4) of Section 145 of the Code. Absence of clear specification of the subject matter of dispute is a vital defect according to learned counsel.
10. On the other hand, learned counsel appearing on behalf of the opposite party Nos. 1 to 3 submitted that from the records of the proceeding, it is manifest that the subject matter of dispute was only l/3rd of the share in the entire land, which fact can easily be ascertained by reference to the record and, therefore, there was no uncertainty or vagueness about it. In that view of the matter, according to him, it is not vital and that will not vitiate the proceeding. In this connection reference was made to a Bench decision of this Court in Shreedhar Thakur v. Kesho Sao, 1962 BLJR 267 = (AIR 1962 Pat 468).
11. Since I have held while considering Point No' (i) that the order was bad in the absence of finding by the Magistrate that the dispute was likely to cause a breach of the peace, in my opinion, it is not necessary to adjudicate on Point Nos. (ii) and (iii) raised by learned counsel for the petitioners.
12. In the result, the order of the Sub-divisional Magistrate is quashed and the application is allowed. However, it is made clear that the Subdivisional Magistrate will call for a fresh report from the Police and will also hear the parties. If he feels satisfied that an apprehension of breach of peace still continues, and an action under Section 145 of the Code is necessary, he will draw up a fresh proceeding in accordance with law and in the light of the observations made above.