- (1.) THIS revision application has been filed on behalf of Udami and 15 others against an order of the Sub-Divisional Magistrate, Jhunjhunu, dated the 18th September, 1950, by which under sec. 145 of the Code of Criminal Procedure possession of Natha and others has been declared in respect of field No. 198 in village Kuloth. The petitioners first went to the Court of Additional Sessions Judge, Jhunjhunu, who dismissed their revision petition.
(2.) THE facts of the case are that a challan was presented by the police in the Court of Sub-Divisional Magistrate Jhunjhunu, under sec. 107 of the Code of Criminal Procedure, against Natha and 7 others. At the same time, Natha and Sheonarain filed a complaint in the same court under sec. 107 of the Code of Criminal Procedure against Udami and 13 others. In both the cross cases the Magistrate issued notices under sec. 112 of the Code of Criminal Procedure. On the 14th of August, 1948, the Magistrate converted the proceedings from sec. 107 to those under sec. 145 of the Code of Criminal Procedure, and ordered both parties to adduce their evidence. Ultimately, on the 18th of September, 1950, after recording the evidence of both the sides, the Magistrate decided in favour of Natha and others and declared their possession. In his order, the Magistrate has, however, concentrated more on the fact of right to possession rather than on possession itself. THE petitioners have challenged the order of the Sub-Divisional Magistrate on the following grounds : - (1) That the Magistrate failed to record a preliminary order under sec. 145 of the Code of Criminal Procedure and the Magistrate had no jurisdiction to take any action under sec. 145, as he did not apply his mind to the case in order to decide whether there was any apprehension of a breach of the peace. (2) That no notices under sec. 145 of the Code were issued to any of the parties, nor was a copy of the order put on the disputed property of the persons. Three, viz. , Hari Baksh, Kalyan Singh and Sohan Singh who have come in revision to this court, and against whom the order of the Magistrate has been made, were not served with any notice whatsoever. THE proceedings in the Court of Magistrate were taken behind the back of these persons. (3) That none of the parties was asked to file his claim in the Court of the Magistrate, and the enquiry was, therefore, not proper. (4) That while the evidence of Udami and others was being recorded, the Magistrate refused to take the evidence on a false objection of the other side, that costs amounting to Rs. 18/- were not paid to them. THE Magistrate, it is said, failed to take down the evidence without any good reason, which go to vitiate the proceedings in the court below. (5) That the Magistrate did not give any finding as ragards the fact of possession of the disputed property at the time of making of the preliminary order or within two months prior to that date, but in fact the Magistrate decided the case on the point of right to possession. It has been conceded by the learned counsel for the opposite side that the order of the Magistrate is not proper, in so far as the Magistrate failed to record his reasons for the finding that there was a likelihood of a breach of the peace. It has, however, been contended that the Magistrate on the 5th of August, 1948, issued notices under sec. 107 of the Code of Criminal Procedure, and in so doing made a mention that there was apprehension of a breach of peace. The conversion of the proceedings under sec. 145 of the Code on the 14th of August, 1948, should, therefore, be presumed to have been made on the understanding that there was an apprehension of a breach of the peace, and the Magistrate proceeded to take an action under sec. 145. To this Mr. Datta on be-half of the petitioners has replied that anything done before the proceedings were started under sec. 145 of the Code cannot be looked into for purposes of those proceedings. He has further added that notices under sec. 107 of the Code do not coyer the point that there is a likelihood of a breach of the peace regarding some dispute about immovable property. In support of this argument, the learned counsel for the opposite side has placed reliance on Mohan Lal vs. Morui (34 Cr. L. , J. 1138), Narsingh Padam Saran Shah vs. Mst. Suraj Kishore Devi (A. I. R. 1951 All. 826) and Ramchandra and others vs. Ganpat (A. I. R. 1925 Nagpur 148 ). The case of 34 Cr. L. , J. 1138 is distinguishable. In that case although there was no mention regarding apprehension of breach of the peace in the preliminary order, the defect was held to have been cured by there being a finding of the Magistrate in his final order that there was an apprehension of a breach of the peace. In the present case, there is no mention even in the final order made by the Magistrate that there was any apprehension of a breach of the peace. The decision in 34 Cr. L. , J. 1138 cannot, therefore, help the case of the opposite party. Similarly, in A. I. R. 1951 All. 826 (Narsingh Padam Saran Shah vs. Mst. Suraj Kishore Devi), the principle laid down is that - "a bare omission or irregularity in a matter of procedure (such as, an omission to record a preliminary order under sec. 145 (1) unaccompanied by any prejudice to the accused or failure of justice occasioned thereby would not operate to invalidate criminal proceedings if substantial justice has been done. The defect, if any, is deemed in such cases to be cured by the provisions of sec. 537. " In that case, before the order of the attachment was made, the Magistrate did not record that he was satisfied that a breach of the peace was imminent, though such an order was made a few minutes after the action of attachment was taken by the Magistrate in the matter. The delay in giving his finding on the point of apprehension of breach of the peace, therefore, was considered to be immaterial, and the jurisdiction of the Magistrate was considered to exist in the matter. A. I. R. 1925 Nagpur 448 (Ramchandra and others vs. Ganpat) is a case wherein it has been laid down that - "where there was evidence that both parties were attempting to cultivate the land, showings of one party having been ploughed up by the other, this was likely to cause a breach of peace, and the mere fact, that the Magistrate had not made this clear in his order did not justify the High Court in interfering in revision. " The point has not been discussed in detail in the judgment of the Nagpur case referred to above, and it has been presumed that even though the Magistrate omitted to record his reasons and his finding about there being a likelihood of a breach of the peace, the Magistrate was satisfied under the circumstances of the case that there was danger of a breach of the peace. The order of the Magistrate was, therefore, allowed to stand In A. I. R 1933 All. 264 (Kapoor Chand and another vs. Suraj Prasad) it has been laid down that - "the jurisdiction of a Magistrate to take action under sec. 145, Criminal P. C. 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. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective. Hence the omission on the part of the Magistrate to follow certain directions contained in the Code, although some of these directions may be more important than others, cannot be said to deprive him of jurisdiction. " It may be pointed out that in order to give jurisdiction to a Magistrate to proceed under sec. 145 of the Code, two things are necessary. The first is that there must be some information on which the Magistrate is to take action, and the second is that the Magistrate should feel satisfied that there is a danger or likelihood of a breach of the peace. Once the Magistrate applies his mind to the material before him and comes to the conclusion that there is a danger or apprehension of a breach of the peace, he has jurisdiction to proceed under sec. 145 of the Code of Criminal Procedure. Accordingly, there must be something on the record to show that the Magistrate did apply his mind to the facts of the case, and was so satisfied to justify an action under sec. 145, In the present case, the counsel for the opposite side has expressed his inability to show anything from the record of the case from which it may be gathered that the Magistrate at any stage of the case applied his mind to the point whether there was an apprehension of a breach of the peace. He has, however, referred to the order of the Magistrate in the two cross-cases under sec. 112 wherein the Magistrate has issued notices saying that the parties were likely to do something which would endanger the peace. It may be noted that the proceedings under sec. 145 of the Code were not resorted to before the 14th of August, 1948, and any action taken by the Magistrate before that date cannot be construed to be something which it was necessary for the Magistrate to do under sec. 145. The order dated 5th August, 1948, therefore, cannot be taken note of in deciding whether the Magistrate applied his mind to the basic fact which would confer jurisdiction upon him to take an action under sec. 145 of the Code. Unless the Magistrate has some material before him, and unless he applies his mind to that material in order to satisfy himself that there is likelihood of a breach of the peace, he cannot enter into an enquiry to adjudicate the rights of the parties in a case of dispute relating to immovable property. Only in those cases where there is likelihood of a breach of the peace, relating to a dispute of immovable property, a criminal court is given jurisdiction to take steps to prevent a breach of the peace. The order of the court below in the present case is also bad in law on a different ground. The Magistrate has decided the rights of the parties relating to possession of the property. It was the duty of the Magistrate to have decided the fact of possession on the date of the preliminary order or within two months prior to that date. It was not the province of the Magistrate to have adjudicated the rights of the parties entitling them to possession. Since the Magistrate has gone beyond the scope of his jurisdiction, his order is bad in law. Moreover, some of the persons, who are parties to this revision and against whom the Magistrate was pleased to make an order were not represented in the proceedings before him, and they had no notice regarding the proceedings under sec. 145 whatsoever. No copy of the preliminary order was put on the property, and it cannot be said that the persons who were not served had any knowledge of the proceedings which were going on in the Court of the Magistrate against them. This revision application is, therefore accepted, and the order of the Magistrate is set aside. The order regarding handing over possession of the disputed property is also set aside. It is always open to a Magistrate to take action under sec. 145 of the Code of Criminal Procedure if he is satisfied that there is a likelihood of a breach of the peace relating to some dispute in connection with immovable property. In this case as well if the Magistrate even now feels satisfied that there is reason to believe that there is an apprehension of a breach of the peace, he may proceed according to law under sec. 145 of the Code. . ;