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Thokchom Nimai Singh and anr. Vs. Thangba Kom and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantThokchom Nimai Singh and anr.
RespondentThangba Kom and anr.
Prior history
R.S. Bindra, J.C.
1. In this reference under Section 438 of the Criminal Procedure Code, hereinafter called the Code, the learned Additional Sessions Judge recommends that the order dated 16-6-1966 by which the sub-divisional Magistrate, Bishenpur, dropped the proceedings under Section 145 of the Code and lifted the attachment in favour of the first party with the direction that the opposite party should not interfere with the possession of the first party over the land in dispute should be qu
Excerpt:
.....that the second party shall not interfere with the peaceful possession of the first party over the land in dispute. he reached the conclusions, as gathered from his reference made to this court, that the magistrate had no jurisdiction to drop the proceedings without first recording the finding that he felt satisfied that, there was no apprehension of breach of the peace, that such a finding was never recorded by the magistrate, and that the magistrate had acted illegally in lifting the attachment and directing the second party not to interfere with the possession of the first party over the land. in view of these legal infirmities in the order of the magistrate, the additional sessions judge was of the opinion that it could not be sustained and so he recommended that it should be set..........that the opposite party should not interfere with the possession of the first party over the land in dispute should be quashed.2. the facts of the case may first be briefly summarised. on 22-11-1965 the officer-in-charge of the police station, bishenpur, reported to the sub-divisional magistrate that there was serious probability of 'clash and blood-shed' between the two parties respecting their right to harvest the crop standing on some patta land in the village. the magistrate after studying the report and examining the officer-in-charge of the police station directed that proceedings under section 145 be drawn up and he simultaneously attached the land in dispute. the two parties involved in the conflict were summoned and in course of time they put in their written statements......
Judgment:

R.S. Bindra, J.C.

1. In this reference under Section 438 of the Criminal Procedure Code, hereinafter called the Code, the learned Additional Sessions Judge recommends that the order dated 16-6-1966 by which the sub-divisional Magistrate, Bishenpur, dropped the proceedings under Section 145 of the Code and lifted the attachment in favour of the first party with the direction that the opposite party should not interfere with the possession of the first party over the land in dispute should be quashed.

2. The facts of the case may first be briefly summarised. On 22-11-1965 the Officer-in-charge of the Police Station, Bishenpur, reported to the sub-divisional Magistrate that there was serious probability of 'clash and blood-shed' between the two parties respecting their right to harvest the crop standing on some patta land in the village. The Magistrate after studying the report and examining the Officer-in-charge of the Police Station directed that proceedings under Section 145 be drawn up and he simultaneously attached the land in dispute. The two parties involved in the conflict were summoned and in course of time they put in their written statements. On 16-6-1966 only the first party was present before the Magistrate and that party prayed that the proceedings be dropped inasmuch as the second party had failed to put in appearance on no less than four hearings, The learned Magistrate was of the opinion that, the repeated absence of the second party was indicative of the fact that they had 'no more interest in the disputed land'. He, therefore, dropped the proceedings and lifted the attachment 'in favour of the first party' and gave the direction that the second party shall not interfere with the peaceful possession of the first party over the land in dispute. The second party having felt aggrieved with the Magistrate's order dated 16-6-66 took the matter in revision before the Sessions Court.

3. The revision petition came up for hearing before Shri P.N. Roy, the Additional Sessions Judge. He reached the conclusions, as gathered from his reference made to this Court, that the Magistrate had no jurisdiction to drop the proceedings without first recording the finding that he felt satisfied that, there was no apprehension of breach of the peace, that such a finding was never recorded by the Magistrate, and that the Magistrate had acted illegally in lifting the attachment and directing the second party not to interfere with the possession of the first party over the land. In view of these legal infirmities in the order of the Magistrate, the Additional Sessions Judge was of the opinion that it could not be sustained and so he recommended that it should be set aside.

4. Unfortunately, the counsel for none of the parties to the dispute has. turned up in this Court today. Only Shri N. Ibotombi Singh, the Government Advocate, has put in appearance on behalf of the Union Territory. Shri Ibotombi Singh supports the recommendation made by the learned Additional Sessions Judge in its entirety.

5. The proceedings initiated under Section 145 can be dropped only in terms of Sub-section (5) thereof. That sub-section provides that nothing in the section shall preclude any party required to attend the Magistrate's Court or any other person interested, from showing that no dispute exists or has existed. In such a case, the section states further, the Magistrate shall cancel his preliminary order, and all further proceedings thereon shall be stayed. It is apparent that the preliminary order can be cancelled only if the Magistrate feels satisfied that no dispute concerning the land involved exists at present or had existed before. Mere representation of one party to the case that dispute does not exist or had never existed cannot constitute justification for cancellation of the order. It is therefore, the finding of the Magistrate that the dispute does not exist at present or had not existed before which alone can provide him the legal sanction for cancellation of the preliminary order. In the instant case the Magistrate did not record the finding that the dispute between the parties had either never existed or had ceased to exist. Hence, it is not possible to uphold the validity of the cancellation of the preliminary order.

6. The Additional Sessions Judge was very right in his observation that the part of the impugned order by which the attachment was lifted in favour of the first party and direction was issued to the second party not to interfere with the peaceful possession of the first party over the land in dispute is open to more serious objection. This part of the order apparently partakes the nature of a final order passed under Sub-sections (4) and (6) of Section 145 after conclusion of the enquiry. However, if the Magistrate, had dropped the proceedings under Section 145 on the basis that the dispute between the two parties had come to an end, he had no jurisdiction to make an order of the nature which is normally passed under Sub-sections (4) and (6) of Section 145. The apprehension of breach of the peace being the basis of the jurisdiction of the Magistrate to proceed under Section 145, he cannot make an order of the nature mentioned in Sub-sections (4) and {6) if he is satisfied that there is no such likelihood and as a consequence he drops the proceedings under Sub-section (5). With the cancellation of the preliminary order, the Magistrate becomes functus officio except, of course, to pass orders necessary to wind up the proceedings, and so he ceases to have jurisdiction to pass an order that one of the two contestants should not interfere with the possession of the other over the property in dispute. In other words, the Magistrate cannot simultaneously act both under Sub-section (5) and under Sub-sections (4) and (6). Once the Magistrate cancels the preliminary order, it befits him to ensure that none out of the parties arrayed before him gets an advantage at the expense of another. The ideal step to take on cancellation of the preliminary order under Sub-section (5) would be to restore the parties to the status quo ante. Since, however, the sub-divisional Magistrate in the present case had directed the second party not to interfere with the possession of the first party over the land in dispute after he had made up his mind to drop the proceedings and cancel the preliminary order, that direction cannot be sustained in law.

7. A perusal of the record reveals that the finding of the Police, while reporting the case to the Magistrate, was that both the parties had been in possession of the land for about 4 to 5 years and that the dispute arose between them at the time of harvesting of the standing crops in November 1965. In such a situation the direction of the Magistrate after dropping the proceedings, that the second party should not interfere with the possession of the first party was highly unjust to the former. The proper course to follow was to proceed with the case to its logical conclusion and then either to hold that one of the parties was in possession of the land if such a conclusion could be arrived at on the basis of the material placed before the Magistrate, or to refer the dispute to the Civil Court under Section 146(1) of the Code. None of these two courses legally open to the Macistrate having been followed, and he having instead cancelled the preliminary order without first recording the finding that the dispute had never existed between the parties or had ceased to exist, I have no option but to accept the recommendation made by the learned Additional Sessions Judge. Consequently I quash the order dated 16th of June 1966 and remit the case to the Magistrate for deciding it in accordance with the provisions of law. I may observe in passing that if the second party had exhibited contumacy in the matter of appearing before the Magistrate, the latter could have proceeded to pass final order in the case despite that party's absence on the basis of material available on the record.

8. Announced.


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