BHANWARLAL Vs. HARISINGH
LAWS(RAJ)-1952-7-1
HIGH COURT OF RAJASTHAN
Decided on July 03,1952

BHANWARLAL Appellant
VERSUS
HARISINGH Respondents


Cited Judgements :-

DURJAN SINGH VS. STATE [LAWS(RAJ)-1954-4-1] [REFERRED TO]


JUDGEMENT

Bapna, J. - (1.)THIS is a reference by the learned Sessions Judge of Merta.
(2.)ON 9th January 1948, Bhanwar Lal made an application to the Second Class Magistrate Parbatsar purporting to say that he was in possession of his Doli land under Bakania Bera in village Nenia and had cultivated the same but that the opposite party Har Singh, Jagirdar of the village, was preventing him from taking away a portion of the crop already lying there and had been preventing him from entering the land, and that there was an apprehension of a breach of the peace. The Magistrate, who was empowered under the law in force at the time to take cognisance of such complaint, fixed the case for next day for statement of the petitioner. ON that day he recorded the statement and passed the following order : - "applicant with his counsel present. His statement recorded. The case may be registered under sec. 145 Cr. P. C. and preliminary order be issued. Put up on 30th January 1948. " Thereafter, Hari Singh filed a written statement disputing the possession of Bhanwar Lal. He asserted his own possession and denied that there was any likelihood of a breach of the peace. Evidence was recorded by various Magistrates before whom the case was put up from time to time and was concluded by the first Class Magistrate, Nagaur. Arguments were heard and on 5th May 1951, the First Class Magistrate of Nagaur dismissed the complaint on the ground that the Second Class Magistrate, Parbatsar, did not record an order under sec. 145 Cr. P. C. in the manner it should have been drawn and the subsequent proceedings were vitiated. He did not decide the matter on the merits. ON revision, the learned Sessions Judge of Merta has recommended that the order of the First Class Magistrate, Nagaur dated 5th May 1951 was illegal and should be set aside and the case may be sent back to that court to decide the matter afresh according to law. An observation was made that if the Magistrate thought that there was an irregularity in the preliminary order which might affect the merits of the case, it was his duty to restart from that stage.
The reference is opposed on behalf of Hari Singh and it is urged that the preliminary order does not show that the Magistrate was satisfied on any of the two grounds which gave him jurisdiction to start proceedings under sec. 145 of the Code. It was argued that the order does not show that he was satisfied that there was a dispute concerning the land and that such a dispute was likely to cause the breach of peace. Learned counsel relied upon Basdeo vs. Badri Narnin (A. I. R. 1952 Allahabad 186), Dirgopal Singh vs Rambrich Singh (A. I. R. 1951 Patna 412), Ramchandra vs. Bhairon-bux (1951 R. L. W. 504), and Dude-chand vs. Manakmal (1951 R. L. W. 129 ). All the cases are, however, distinguishable.

In the Allahabad case, the order of the Magistrate on an application presented to him was : "s. O. Sarai Mamrez; Please enquire and report. If there is an apprehension of breach of peace, the property in dispute may be attached and compliance report, should be sent to this court before 10. 7. 48. " It was observed by their Lordships of the Allahabad High Court that the words "if there is an apprehension of breach of peace" indicated that the Magistrate himself was not satisfied that there was an apprehension of the breach of the peace at that time. There are further observations that the Magistrate never had occasion to apply his mind to this matter even after receipt of the police report and to consider whether it contained any material on which he was satisfied as to the existence of any dispute likely to cause breach of peace. He merely directed the parties to be summoned for a specific date.

In the Patna case, the proceed-ings were started under sec. 144 Cr. P. C. , but later on converted into those under sec. 145 Cr. P. C. The parties had been examined before the issue of the preliminary order and each of them denied that he was likely to commit a breach of the peace. The order recorded by the Magistrate did not show that he was satisfied as to the existence of any dispute which was likely to cause breach of peace.

Of the two cases of this Court, in Ramchandra's case, the notice although purporting to have been issued under sec. 145 of the Code was in reality an order under sec. 112 Cr. P. C. In Dudechand's case also the notice issued was to show cause why the possession of the petitioner be not maintained and the non-petitioner be not restrained from interfering with the possession of the petitioner so that there may be no breach of peace. It was pointed out that that notice did not indicate that the Magistrate thought that there was an immediate apprehension of the breach of the peace. The order recorded was not in terms required by sec. 143 of the Code.

In the present case, no formal preliminary order was drawn up beyond what has been quoted in the earlier part of the judgment; but the order shows that the Magistrate considered after recording the statement of the complainant that he was satisfied as to the conditions requisite before starting proceedings under sec. 145 of the Code. Although he has not expressly mentioned this he has referred to the statement recorded by him, and that statement when perused shows that there was a dispute as regards possession of the land and there was an apprehension of the breach of the peace. These two facts must, therefore, have been in the mind of the Magistrate at the time when he recorded the order that the case be registered under sec. 145 of the Code and the preliminary order be issued.

What has happened in this case is that the Magistrate has not himself drawn up the order and seems to have remained under the impression that it was to be drawn up by the office. There he was wrong. The preliminary order had to be drawn by the Magistrate himself. So there is this defect in procedure. Instead of referring to the statement and directing that the case be registered, he should have mentioned what that statement was which led him to pass the order that the case be registered under sec. 145 Cr. P. C. But obviously he considered that statement sufficient for registering the case under sec. 145 Cr. P. C.

The Full Bench of the Allahabad High Court in Kapoorchand vs. Suraj Prasad (A. I. R. 1933 Allahabad 264 F. B.) held that the jurisdiction of a Magistrate to take action under sec. 145 Cr. P. C. arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. It does not depend on how he proceeds. He is not deprived of the jurisdiction merely because his procedure is erroneous or defective.

(3.)THE question which was important was whether any prejudice had been caused to the parties. On a perusal of the record it is apparent that the opposite party filed his written statement and evidence was also led by both the parties and the case was argued before the Magistrate. Instead of deciding the case on the merits, the complaint was thrown out on the preliminary ground. Learned counsel for the opposite party was not able to show any prejudice caused by the preliminary order not having been drawn up in a formal manner.
I, therefore, accept the reference, set aside the order of the Magistrate dated 5th May 1951 and direct that the case be sent back to the learned First Class Magistrate, Nagaur for decision of the matter on the merits. .



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