Decided on July 17,1963



Kumarayya, J. - (1.) The only question that arises for consideration in this case is whether the Munsif-Magistrate, Wanaparthy, acted without jurisdiction in pitting his final order under Section 145 Cr. P. C. even though there was no preliminary order passed under Section 145(1) Cr. P. C.
(2.) The proceedings were initiated in the Court of the Executive Magistrate, Narayanpet, on the report of the police, Devarakadra which was made at the instance of the first-party, respondent herein. As soon as that report was received, a clerk in the office of the Revenue Divisional Officer (Executive Magistrate), Narayanpet, submitted a note on 3-11-1960, which is to the following effect: "Sir, F. I. R. No. 39/60 issued by the Sub-Inspector (of police) Devarakadra, may kindly be perused. Today he has submitted the charge-sheet No. 18/60 under Section 145 Cr. P. C. in which (the) sworn statement of the Sub Inspector is to be recorded by the Executive Magistrate. The report submitted by the Sub Inspector reveals that there is a dispute between (the) two parties for possession of Survey No. 87 situate at Gorakonda village, Atmakur, and there is likelihood of breach of peace and further, the report reveals that the land in dispute may be taken under Government custody till the disposal of the case. If pleased, suitable date may be fixed (for) obtaining the statement of the Sub Inspector and he may be informed about the dale." This report was signed by the clerk. An endorsement was made thereon by the Head Clerk which is as follows: "Necessary date may be fixed for recording the statement of (the) Sub Inspector." That endorsement bears signature of the Head Clerk with the date 3-11-1960. Thereunder the Magistrate had endorsed "Yes", with his initial and date 16-11-60.
(3.) It appears from the notes of the Clerk himself that thereafter 24-11-1960 was fixed as the date for recording the statement of the Sub Inspector of Police. This endorsement is dated 16-11-1960. Again on 24-11-1960, the same clerk made an entry on the docket-sheet that the statement of the Sub Inspector was recorded and notices have also been issued to the parties and the case was posted to 10-12-1960 for appearance. This entry on the docket sheet is not supported by any written order of the Magistrate except to the extent that the Magistrate himself had recorded the statement of the Sub inspector on that day. After recording the statement the Magistrate of course could pass an order; but there is no order in writing by the Magistrate to issue such notice. It is significant that even the notices which were issued on 24-11-1960 stating that there is tension between the parties; that there appears to be likelihood of breach of peace due to the dispute and that, therefore, it is ordered that the parties should appear in the court and put in written statements of their respective claims, does not bear the signature of the Magistrate himself. They were issued under the signature of the Head Clerk for the Magistrate. Thus it is clear that except that the Magistrate had taken down the statement of the Sub-Inspector on 24-11-1960, he has done nothing in the proceedings initiated at the instance of the Police. It is the clerk who made the report and the Head Clerk endorsed that a date may be fixed for recording the statement of the Sub Inspector and the Magistrate merely stated "Yes" and thereafter he did not choose to comply with the provisions of Section 145 Cr, P. C. Sub-Section CD of Section 145 Cr. P. C. reads thus: "Whenever a District Magistrate, Sub-Divisional Magistrate, or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his 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, within time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of the dispute and further requiring them to put in such documents, or to adduce, by pulling in affidavits, the evidence of such persons, as they rely upon in support of such claims." It was the bounden duty of the Magistrate to make an order in writing himself, stating the grounds of his being satisfied that there exists likelihood of breach of the peace and requiring the panics concerned to enter their appearance within a time fixed and put in their written statements in support of the fact of actual possession. We look in vain for any such formal order in writing made by the Magistrate in the file containing the proceedings of the case before the Executive Magistrate. It is obvious that he made no order in writing. It was the Clerk who had issued the notices under the signature of the Head Clerk without obtaining any orders of the Magistrate in writing. Certainly the functions under Section 145 Cr. P. C. are judicial and cannot be entrusted to any agent of the Magistrate. It is the duty of the Magistrate functioning as such to discharge the functions himself. But the learned Magistrate, curiously enough, did not choose to look into the provisions and see that no further proceedings could lake place unless an order in writing as contemplated by Section (45)(1) was made by him and that it is he who should be satisfied and that this act of satisfaction cannot be delegated to the clerk or the Head Clerk. When the case was transferred to the judicial magistrate through the District Magistrate without any such preliminary order on record in writing by the Executive Magistrate, the Munsif-Magistrate of Wanaparthy found some other defects in the proceedings to which reference has been made in paragraph 3 of his order and he sought to rectify the same. One of the drawbacks mentioned therein relates to the proclamation to be published as required by Sub-Section (3) of Section 145 Cr. P. C. The said Sub-section reads thus: "A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute." The learned Munsif-Magistrate seems to have been under an erroneous impression that the notice which purports to be signed for the Executive Magistrate was in fact signed by him or at least it was issued in pursuance of an order made by the Magistrate in writing and as such he thought that by publication thereof by affixture at some conspicuous place of the subject-matter of dispute the defect in the proceeding could be cured and he acted accordingly. But, as already noticed, the Executive Magistrate made no order at all. Thus the proceedings started before the Judicial Magistrate with a serious defect of complete absence of preliminary order in the case. The parties do not appear to have raised any objection in relation thereto till the proceedings had terminated in a declaration that the first party was in possession and that his possession shall be maintained. The second party has however come to this Court invoking the revisional jurisdiction after it has failed to move the Sessions Court in this behalf.;

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