Rajvi Roop Singh, J.C.
1. This is a Criminal Reference made by the learned Sessions Judge, Tripura recommending that the order of learned Magistrate First Class, Dharmanagar, dated 5-12-63 be set aside.
2. The reference arises in the following circumstances:
On 17-11-63 the petitioner Kutubddin Ahamed lodged a written information with the 0. C,, Dharmanagar, P. S. by a petition stating that the opposite parties were attempt ing to reap away paddy grown by his bargadars Rajibulla, Joy far Mohammed and Abdul Gafur on several plots of land owned and possessed by him and together measuring 1 drone 10-1/2 kanis in area appertaining to different Talluks as described in the schedule to the petition and that there was an apprehension of breach of the peace as a result, and praying for taking necessary steps so that the opposite par-ties might not do anything in respect of the said land so as to cause breach of the peace.
On the basis of the said application a G. D. entry was recorded at Dharmanagar P. S. The Police submitted a report dated 18-11-63 after enquiry to the Sub-Divisional Magistrate, Dharma nagar, Tripura to the effect that there was every possibility of serious breach of the peace and praying for passing orders under Section 145 Cr PC for attachment of the land in question. Accordingly the learned S. D. M. Shri S. N. Roy Choudhury passed an order on that date i.e. 18-11-63 to the following effect:
Seen the Police report. I am also satisfied that there is likelihood of breach of peace-between the parties over the possession of the land. Hence drew up proceeding u/s. 145 of Cr PC and attach the land in dispute till the disposal of the case. Ask both the parties to file affidavits, W. S., documents, if any. To 5-12-63.
Thereafter on 22-11-63 the petitioner Kutubud-din Ahamed having filed a petition praying for auctioning of the standing crops, the learned Magistrate directed issue of notice fixing 3-12-63 as the next date. But on 26-11-63 the learn-ed Magistrate passed an order directing the Circle Inspector of Police for sending a proper verification of the land mentioning in the said order that the case was put up on that date on the representation of the second party, that he had seen the report of the Officer who attached the land and that verification of the land was necessary. Thereafter on 5-12-63 the learned Magistrate dropped the proceeding by recording an order to the following effect:
Perused the report of C.I. of Police. In view of that the proceeding is dropped and attachment is vacated as no apprehension of breach of peace exists now.
3. Being aggrieved by this order of the learned Magistrate the petitioner filed a revision petition to the Court of learned Sessions Judge, Tripura. The learned Sessions Judge, after hearing the lawyers has made this reference to this Court for setting aside the order of learned Magistrate dated 5-12-63.
4. Heard the learned Counsel for the petitioner and perused the record of the case. I find that the order of the learned Magistrate is illegal and hence it cannot be allowed to stand.
5. The only provision for dropping of proceeding under Section 145 Cr PC after the same has been drawn up in accordance with the provisions of Sub-section (1) of Section 145 Cr. PC. is to be found in Sub-section (5) of that section which reads as follows:
Nothing in this section shall preclude any party so required to attend, or any other persons interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.
It is to be noticed that in the present case since the order dated 18-11-63 drawing up the proceeding under Sub-section (1) of Section 145 Cr PC was passed by the learned Magistrate until the order dropping the proceeding was passed by the learned Magistrate on 5-12-63, neither parties to the proceeding who might be required under Sub-section (1) of Section 145 Cr PC by the learned Magistrate to attend his Court nor any other person interested had shown that no dispute existed relating to the proceeding land. The language of Sub-section (5) is clear to the effect that only in the contingency of any party required to attend, or any other person interested showing that no dispute existed, the Magistrate is required to cancel his order, subject to such cancellation the order of the learned Magistrate under Sub-section (1) shall be final. From that stand-point the order dropping the proceeding can-not be held to be a lawful order passed under Sub-section (5) of Section 145 Cr. P.C. It is true that there are decisions to the effect that Sub-section (5) does not take away the power of the Magistrate to drop the proceeding suo motu; but there can be no room for doubt that he can do that only when he comes to hold that there was no dispute likely to cause a breach of the peace existed concerning land, in the exercise of his judicial discretion.
In this case it cannot be overlooked that in dropping the proceeding the learned Magistrate has followed a procedure which is not provided for anywhere under Section 145 Cr. P.C. The order dated 26-11-63 directing the Circle Inspector of Police for sending proper verification of land was passed at the instance of the second party behind the back of the first party petitioner on a date which was not fixed for the case. The report of the Circle Inspector of Police on which the learned Magistrate relied to drop the proceeding was, therefore, one without notice to the first party. Passing of ex parte order on 26-11-63 for verification of the land by the Circle Inspector of Police and placing of reliance on the report of the Circle Inspector of Police are nothing but arbitrary acts on the part of the learned Magistrate and can-not be held to have been done on the basis of exercise of a judicial discretion. The result of the order dropping the proceeding on 5-12-63 is that the first party has been deprived of an opportunity of proving his case by filing written statement, affidavits and documents an ordered by the learned Magistrate himself on 18-11-63.
In my view, the procedure adopted by the learned Magistrate in dropping the proceeding is not only illegal but has also occasioned a failure of justice. That there is a failure of justice in dropping the proceeding in the case would be all the more evident from the fact that the learned Magistrate simply directed the Circle Inspector of Police to send a proper verification of the land and not to make any enquiry or report as to which party was in possession. In the enquiry report, however, the Circle Inspector of Police appears to have mentioned that the petitioner Kutubuddin had been given a power of attorney by 4 persons named Mafij Ali, Manir Ali, Abdul Sattar and
Parija Bibi in the month of May, 1963 which was authenticated by the District Magistrate, Tripura in August, 1963 and that since then Kutubuddin had been trying to establish his claim in the plots under attachment although neither Kutubuddin nor any of his bargadars had any physical possession over those lands. Such a report is beyond the scope of the direction given by the learned Magistrate and certainly cannot be the basis of the learned Magistrate's observation to the effect that no apprehension of breach of peace exists now.
6. As the order of the learned Magistrate dated 5-12-63 is illegal, highly improper and has occasioned a failure of justice so I have no option but to set it aside. I, therefore, accept the reference and set aside the order of learned Magistrate and send the case back to the learned Magistrate with the direction, that he should proceed with the enquiry under Section 145 Cr PC after allowing the opportunity to put in written statement, affidavits and documents as ordered by him on 18-11-63.