Decided on June 19,1957



- (1.) THE Additional Sessions Judge, Jullundur, has sent up this case with a recommendation that the order passed by Shri Amar Singh Bhatia, Magistrate 1st class, Jullundur, dated 18th of June, 1956, dismissing the complaint filed in his court under Section 145, Criminal Procedure Code, against the respondent, may be quashed and further enquiry into the matter may be ordered. Two persons Faqir Chand and Durga Das applied under Section 145. Criminal Procedure Code, to the Court of the Magistrate 1st Class, Jullundur, complaining that they apprehended breach of the peace as a result of a dispute between the Balmikis and Ad Dharmis of Kartarpur, Tehsil and District Jullundur, with respect to the yacant piece of land. The petition was presented on the 18th of June, 1956, and after recording the statement of Faqir Chand petitioner the Magistrate at once proceeded to judgment and made a sketchy order dismissing the complaint being of the view that he was not satisfied that a dispute likely to cause a breach of peace existed. Against the order of dismissal the petitioner submitted a revision petition to the Additional sessions Judge praying that further enquiry should be ordered. The Additional sessions Judge while forwarding proceedings to this Court for revision, is of the view that the Magistrate acted illegally in disposing of the application under section 145 without recording any evidence- The Additional Sessions Judge is of the view that it is not open to a Magistrate to refuse to take evidence on behalf of a party merely because he thought he was satisfied from the written statements of the parties that the allegation in the epmplaint was not a correct one. The additional Sessions Judge has referred to Biswanath Mahapatre v. Shivanand saraswati, AIR 1921 Pat 308 (A), Hatemali Chaprasi v. Osimuddi, AIR 1924 Cal 544 (2) (B), Shiamsundar Lal v. Sheo Parshad, AIR 1053 Allahabad 505 (B-1) and srcemanavedava Raju v. Parapravan Naidu, AIR 1920 Madras 566 (C), in support of his view. In this ease the Magistrate not only did not receive the oral evidence but refused to issue notice to the respondent.
(2.) MR. Bhagwan Dass Mehra appearing on behalf of the petitioner has supported the recommendation of the Additional Sessions Judge, which is being opposed by shri H. L. Mittal who appeared for the respondent. Under Section 145- (i) Criminal procedure Code, when a District Magistrate, Sub-Divisional Magistrate or a magistrate of the first class is satisfied from the police report or other information that a dispute likely to cause a breach of the peace exists con cerning any land etc. within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satis-fled, and requiring the parties concerned in such dispute to attend his court in person or by pleader and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(3.) THE intention of the Section is to pro- vide a speedy remedy for the prevention of a breach of the peace arising out of dispute in respect of immovable property. Before making a preliminary order, the enquiry, which is contemplated, may not be detailed. The enquiry contemplated is for purposes of satisfaction of the magistrate, which may be either from a police report or other information suggesting the necessity for taking action. The purpose of Section 145 and allied provisions is to prevent the immediately apprehended breach of the peace which purpose in all likelihood may be defeated by a prolonged enquiry extending over several hearing. If for any reason the enquiry is delayed and a preliminary order is not passed, the whole object of this section may be frustrated. It is only after a preliminary order under Sub-section (1) is passed that further proceeding can be initiated. The Magistrate, however, has to state in the preliminary order the grounds for his being satisfied as to the likelihood of a breach of the peace. The provision as to stating the grounds of the Magistrate being satisfied as to there being an apprehension of a breach of the peace is mandatory. Despite the fact that Section 145 is adapted to cases of urgency it is not possible to lay down any hard and fast rule as to the Sufficiency of the material which has to be produced before a Magistrate for his satisfaction. This must vary ex necessitate rci with the facts of each case and in accordance with the particular exigencies. No doubt after the entire material is placed before a magistrate he alone has to judge whether he should exercise his discretionary powers, but the question in this case is, whether it is open to the Magistrate to exclude the very material which a party wants to place before him for purposes of his satisfaction. , If the Magistrate could be deemed to have power under Section 145 to refuse the reception of the necessary data, the danger would be, that recourse to Section 145, could be effetively prevented because of the Magistrate's refusal to place on the record facts, on the strength of which, an apprehension of a breach of the peace could be reasonably inferred. Once there is information placed before the Magistrate, the High Court would not go into the sufficiency of the information for purposes of the satisfaction of the magistrate. The initiatory order under Section 145 (1) depends on the satisfaction of the Magistrate alone. It is. however, not possible to stretch the Magistrate's discretionary power further than that. I cannot subscribe to the view, that it is open to the Magistrate first to refuse to receive information and then to decline to pass a preliminary order on the ground that he is not satisfied as to the exi-tence of a prima facie case disclosing a reasonable apprehension of the breach of the peace.;

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