MOHANSINGH Vs. KISHANLAL
LAWS(RAJ)-1952-2-8
HIGH COURT OF RAJASTHAN
Decided on February 27,1952

MOHANSINGH Appellant
VERSUS
KISHANLAL Respondents


Referred Judgements :-

NAROTAM VS. KAMLABAI [REFERRED TO]
BALA VS. PIRIYA [REFERRED TO]



Cited Judgements :-

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


JUDGEMENT

Bapna, J. - (1.)THIS is a revision against an order of the Sub-Divisional Magis-trate, Ballabhnagar, dated 8th February 1951. A revision to the Additional Sessions Judge, Udaipur was dismissed on 25th April, 1951.
(2.)THE proceedings started on a complaint by Kishan Lal that he was in possession of four bighas of land in Kheroda known by the name of 'maleti' and had raised jwar crop thereon, but the opposite party, in order to take possession of that land, had destroyed the crop and was bent upon taking possession of the same, and there was likelihood of a breach of the peace. In the same application he prayed that the land be attached until the decision of the proceedings. Learned Magistrate directed issue of notice, and on notice being issued, a written statement was filed by the opposite party Mohan Singh who asserted his own lawful possession. Evidence was recorded and the Magistrate by an order dated 8th February 1951, declared that Kishan Lal was in possession of the field on the date of the preliminary order, and he forbade Mohan Singh from interfering with that possession until eviction of Kishan Lal in due course of law. On behalf of Mohan Singh, a revision was filed to the Court of Sessions Judge, Udaipur on the grounds that the preliminary order recorded by the Magistrate and the notice issued in pursuance thereof were not in accordance with law. THE learned Addl. Sessions Judge, who disposed of the revision, observed that the orders of the learned Magistrate were not in accordance with law but no prejudice had been caused to Mohan Singh. He considered that the order of the lower court was not one which should be interfered with. THE petition was accordingly dismissed.
Learned counsel for the petitioner Mohan Singh urged that the foundation of the proceedings under sec. 145 Cr. P. C. was the preliminary order and if the conditions required by law to be fulfilled before drawing up that order are not so done and the notice issued thereunder is not in accordance with law, the subsequent proceedings are invalid and should be quashed. Reliance was placed on Narotam vs. Kamlabai (1951 R. L. W. 55), and Bhairon Bux vs. Rajmal (1952 R. L. W. 10 ).

Learned counsel for the opposite party Kishan Lal, however, urged that although there was certain defect in the orders of the lower court, no prejudice had been caused as the subse- quent proceedings were entirely in accordance with law and were not invalid. Reliance was placed on Kapoorchand and another vs. Suraj Prasad (1933 Allahabad 264 ). The complainant in the present case, in an earlier portion of the complaint gave all the details required for initiation of the proceedings under sec. 145 Cr. P. C. In the later portion, a request was made for attachment of the property till decision of the matter which should really be a matter of separate application for action under proviso to sub-sec. (4) of sec. 145. Curiously enough, the reference in the petition is to sec. 146 Cr. P. C. which of course can only be made applicable when the court is unable to come to the conclu- sion as to who was in actual posses- sion of the property on the date of the order, and in which case none of the parties can be declared to be in possession of the property. In view of the fact that the complainant set up his own possession in an earlier portion of the petition, he was only asking for an attachment, pending decision, in the case of an emergency. The Magistrate's order on the petition was as follows : "after perusing the affidavit, a notice be issued to the non-petitioner (Mohan Singh) as to why the land be not attached. His reply should be presented on nth September, 1950. " The notice in pursuance of this order was as follows : "in the above case, an application has been presented by Kishan Lal that he is in possession of four bighas of land known as 'maleti' and had raised thereon jwar crop which the opposite party (Mohan Singh) had destroyed and that he would produce his evidence of possession, and the land be attached under sec. 145 Cr. P. C , where for this notice is issued to you (Mohan Singh) to show cause why the land be not attached. If you have any reasons, they should be presented on nth September 1950". The order and the notice issued thereupon are clearly defective in so far as they did not mention that there was likelihood of a breach of the peace, and did not also call upon Mohan Singh to (produce his written statement on the question of possession. So far as the order is concerned, it may be that the Magistrate had in mind that there was likelihood of the breach of the peace as he began his order by a statement that he had seen the affidavit and the affidavit mentioned that there was likelihood of a breach of the peace. The other defect in the order and the notice, however, is there.

Mohan Singh filed a reply on the 20th September, 1950 which is, for all purposes, a written statement contemplated under sec. 145 Cr. P. C. Evidence was thereafter led by the parties and the Court made declaration in favour of Kishan Lal as aforesaid.

It was urged by learned counsel for the petitioner that Mohan Singh was prejudiced in so far as he did not lead evidence that there was no likelihood of the breach of the peace. But that was a sort of negative evidence and the statement of Mohan Singh that he was himself in possession of the field and it was never sown or ploughed by Kishanlal and he never at any time destroyed any jwar crop of Kishanlal amounted to evidence purporting to show that there was no likelihood of the breach of the peace. He also led evidence to show that he was all along in peaceful possession of the property. In the circumstances, I am of opinion, that the petitioner Mohan Singh was not prejudiced by any defect in the preliminary order or the notice issued to him. The oral and documentary evidence led by the parties was fully examined by the Magistrate before he arrived at the conclusion which he did.

With great respect I agree with the observation of the Full Bench of the Allahabad High Court in Kapoor Chand & another vs. Suraj Prasad (1933 All. 264) that the jurisdiction of a Magistrate to take action under sec. 145 of the Code of Criminal Procedure arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate does not depend on how he proceeds and he is not deprived of the jurisdiction merely because the procedure is erroneous or defective. That case also related to proceedings under sec. 145 Cr. P. C. and the notice was defective in certain respects. The Court, however, held that no prejudice had been caused to the petitioner and the irregularity was held to have been cured by sec. 537 of the Code of Criminal Procedure. That decision was followed in a recent judgment of the same High Court in Mst. Ram Pyari and another vs. Darikua (A. I. R. 1949 All. 402) where it was observed that a Magistrate acquires jurisdiction to proceed under sec. 145 Cr. P. C. only when there is likelihood of a breach of the peace. If there is material before a Magistrate upon which he feels satisfied that there is a likelihood of a breach of peace, an omission to record a foirmal order as required by sec. 145 may be treated as a mere irregularity which can be cured under sec. 537 Criminal Procedure Code.

In respect of the cases cited by learned counsel for the petitioner, it may be pointed that there was no allegation of the likelihood of the breach of the peace in Narottam vs. Kamlabai. In the other case Bhairon Bux vs. Rojmul, the effect of the irregularity in cases where there was no prejudice to the parties was not considered.

As a result, no case for interference has been made out, and this revision is hereby dismissed. .



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