C. Jagannadhacharyulu, J.C.
1. This is a reference made wader Section 438 Cr. P.C. by the Sessions Judge, Manipur, to set aside the order of the D. M., Bishenpnr, dated 30-3-65 passed in N. F. I. R. Case No. 15 of 1962 on his file dropping the further proceedings under Section 145 Cr. P.C.
2. The brief facts of the case leading to this reference are that one Thokchom Narahari Singh of Ningthoukhong village made a report to the Police Station in Bishenpur against the respondents, alleging that they committed theft of paddy from his land, covered by patta No. 44/461-A (new). The Police filed a report in the S. D. M.'s Court in Bishenpur, requesting him to take action under Section 145 Cr. P.C. The S. D. M., Bishenpur, passed a preliminary order on 20-12-62 in N. F. I. R. Case No. 15 of 1962 and attached the land. After enquiry, he passed an order on 4-6-63 declaring the respondents to be in actual physical possession of the disputed land and delivered the same to them.
3. Thokchom Narahari Singh filed Criminal Revision No. 21/63/2 of 1964 in the Sessions Court in Manipur. The Additional Sessions Judge referred the matter to this Court under Section 438 Cr. P.C. to set aside the S. D. M.'s order. This Court accepted the reference in Criminal Reference No. 7 of 1964 by its order dated 29-1-65 and remanded the case to the S. D. M., Bishenpur, for a proper decision on the question of actual possession of the land.
4. After remand, Thokchom Narahari Singh died. On 30-3-65, the date fixed by the S. D. M. for the appearance of the parties, the third petitioner Nandashyarn Singh, who is the second son of Narahari Singh, filed a petition signed by all the petitioners viz. the widow, sons and daughters of late Narahari Singh to add them as legal representatives in substitution of the deceased first party under Section 145(7) Cr. P.C. But, the Magistrate passed an order on 30-3-65, holding that it was doubtful if Nandasyam Singh, the second son, was a legal representative when his elder brother Manimacha Singh, the 2nd petitioner herein is alive. He further held that the married daughters of the deceased Narahari Singh are not his legal heirs. Stating that the 3rd petitioner Nandasyam Singh represented that there was no likelihood of the breach of the peace, the S. D. M. dropped the proceedings under Section 145 Cr. P.C. and confirmed the possession of the respondents and directed them to continue to possess the disputed land.
5. The petitioners filed Criminal Revision Petition No. 20 of 1965 in the Sessions Court, Manipur to revise the said order of the S. D. M. The learned Sessions Judge made the reference to this Court under Section 438 Cr. P.C. to set aside the order of the S. D. M., as it is contrary to Sub-sections (7) and (5) of Section 145 Cr. P.C.
6. According to the Dayabhaga Law, the widow, the sons and the married daughters of the deceased Narahari Singh are all his legal heirs. So, the Magistrate should have added them as the legal representatives of the deceased Narahari Singh under Section 145(7) Cr. P.C. His order that it is doubtful whether the second son would be a legal representative betrays the shallowness of his legal knowledge. If he had any doubt as to who are the legal representatives, he was bound to add all the petitioners under the latter portion of Sub-section (7) of Section 145 Cr. P.C., as all of them claimed to be the legal representatives of the deceased party. So, the order of the S. D. M. refusing to add the petitioners as the legal representatives of the deceased Narahari Singh is in contravention of the provisions of Section 145(7) Cr. P. C, and is illegal.
7. The S. D. M. dropped the further proceedings evidently under Section 145(5) Cr. P.C., though he did not quote that sub-section in his order, on an oral statement, said to have been made by the third petitioner Nandashyam Singh, that there was no breach of the peace. Sub-section (5) of Section 145 Cr. P.C. lays down that any party required to attend the Court (under Sub-section (1) of Section 145 Cr. P.C.) or any other person interested may show that no dispute likely to cause a breach of the peace exists or has existed (within the meaning of Sub-section (1)). In such a case, the Magistrate should cancel his preliminary order and stay all further proceedings. In the present case, Nandashyam Singh, the third petitioner is alleged to have made an oral statement that no breach of the peace existed because the land was in the possession of the respondents, after it was made over to them by the S. D. M. after he passed the earlier order dated 4-6-1963. But, the attachment was revived, after the matter was remanded to him by this Court for fresh disposal. So, there could be no breach of the peace when the land was in custodia legis or after it was handed over to the respondents by the S. D. M. Section 145(5) does not contemplate such a situation. Besides, he did not at all add the legal representatives of the first party and then come to the conclusion from their statements or otherwise that no dispute, likely to cause breach of the peace, exists or has existed. His order that the respondents should continue to be in possession of the land, unless and until fresh circumstances attracting Section 145 Cr. P.C. arose, amounts to raising the attachment of the land and directing its delivery to the respondents. It is one passed without jurisdiction and contrary to the provisions of Sub-section (4) of Section 145 Cr. P.C. under which he was bound to decide oil evidence which party was in possession of the disputed land on the date of the preliminary order passed by him under Sub-section (1) of Section 145 Cr. P.C. So, it was his duty to have added the legal representatives and proceeded with the further enquiry regarding possession of the land under Sub-section (4) of Section 145 Cr. P.C. The dropping of the proceedings by the Magistrate under the above circumstances is illegal and his order is liable to be vacated.
8. The rulings relied on by the petitioners' counsel have also bearing on the above aspect of the case and lay down the same principles. In Misil Mirdha v. Abdul Rahim AIR 1934 Cal 787, it was held that once proceedings under Section 145 Cr. P.C. are started, they must be proceeded with until the question of possession is determined, that the order can only be cancelled under Section 145(5) when the Court is satisfied that no dispute likely to cause a breach of peace exists or has existed and that the order dropping the proceedings merely by reason of death of one party is ultra vires. In Ram Kripal v. Ganesh Prasad AIR 1952 Via Pra 81, it was laid down that, even though the Magistrate has jurisdiction either to continue the proceedings or to drop them at any stage on being satisfied that the dispute contemplated by Sub-section (1) of Section 145 Cr. P.C. either existed or at any rate does not exist, when the proceedings are being dropped on a compromise between the parties, the Magistrate will be well advised as a matter of prudence to satisfy himself that the compromise is a real one, and not merely a device to get the dispute out of Court and to fight it out in their own way. In Mahesk Chandra Acharya v. Krishna Chandra Rudrapal AIR 1960 Tripura 1, it was held that the order of the Magistrate dropping the proceedings two and a half years after they were started on the ground that there was no apprehension of the breach of the peace arid without deciding the question as to who was in possession of the property was perverse.
9. In the result, the reference is accepted and the order of the S. D. M. in question is quashed. The matter is remanded to him with the following directions:
(a) he should add the legal representatives of the deceased first party under Section 145(7) Cr. P.C., and
(b) he should then give opportunity to both the parties to lead, evidence and dispose of the matter in accordance with law.