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Mahesh Chandra Acharya Vs. Krishna Chandra Rudrapal and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMahesh Chandra Acharya
RespondentKrishna Chandra Rudrapal and ors.
Prior history
T.N.R. Tirumalpad, J.C.
1. This is an application for revision against the order of the learned Sessions Judge, Tripura refusing to interfere with the order of the 1st class Magistrate, at Agartala dismissing the petition filed by the petitioner (1st party) for an order Under Section 145 Cr. P.C.
2. The first party applied to the Magistrate Under Section 144 Cr. P.C. stating that the second party were trying to cut away the crops raised by him in a land belonging to him measuring 2 kanis and t
Excerpt:
.....the second party and the police that a breach of the peace was likely to be caused concerning the land in dispute. 3. when he thus converted the proceedings into one under section 145 he had to make an order to that effect stating the grounds of his being so satisfied and calling upon both the parties to appear before him and to put in written statements of that respective claims and to see that the order was served on all the parties. it appears that two members of the second party appeared before him and that the first party as well as the said two members of the second party put in written statements of that respective claims regarding actual possession, the first party claiming that they were in possession and raised the crops while one member of the second party krishna chandra..........the second party and the police that a breach of the peace was likely to be caused concerning the land in dispute.3. when he thus converted the proceedings into one under section 145 he had to make an order to that effect stating the grounds of his being so satisfied and calling upon both the parties to appear before him and to put in written statements of that respective claims and to see that the order was served on all the parties. as these proceedings took place in 1954 we are guided by the old section before the amendment. it appears that the magistrate omitted to draw up the formal proceedings contemplated in section 145(1) or to have it served upon all the members of the second party.but in other respects he followed the provisions under the said section. it appears that two.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. This is an application for revision against the order of the learned Sessions Judge, Tripura refusing to interfere with the order of the 1st class Magistrate, at Agartala dismissing the petition filed by the petitioner (1st party) for an order Under Section 145 Cr. P.C.

2. The first party applied to the Magistrate Under Section 144 Cr. P.C. stating that the second party were trying to cut away the crops raised by him in a land belonging to him measuring 2 kanis and that he apprehended breach of the peace. The Police from whom the Magistrate called for a report also stated that there was apprehension of breach of the peace. The Magistrate then drew up proceedings Under Section 144. Then be member of the second party appeared before the Magistrate and filed a written statement stating that he was in possession of the property in dispute and that he also apprehended a breach of the peace if the first party attempted to reap the paddy in the land. He also prayed that the proceedings may be converted into one Under Section 145 Cr. P.C. The Magistrate accordingly converted the proceedings into one Under Section 145 Cr. P.C. It is clear that the Magistrate did so on being satisfied on the unanimous statements of the first party, the second party and the Police that a breach of the peace was likely to be caused concerning the land in dispute.

3. When he thus converted the proceedings into one Under Section 145 he had to make an order to that effect stating the grounds of his being so satisfied and calling upon both the parties to appear before him and to put in written statements of that respective claims and to see that the order was served on all the parties. As these proceedings took place in 1954 we are guided by the old Section before the amendment. It appears that the Magistrate omitted to draw up the formal proceedings contemplated in Section 145(1) or to have it served upon all the members of the second party.

But in other respects he followed the provisions under the said Section. It appears that two members of the second party appeared before him and that the first party as well as the said two members of the second party put in written statements of that respective claims regarding actual possession, the first party claiming that they were in possession and raised the crops while one member of the second party Krishna Chandra Rudrapal claiming that he was in possession of the land and had raised the crops. Then the Magistrate proceeded Under Section 145(4') second Proviso and placed the property under attachment. He also leased out the land under attachment to Krishna Chandra Rudrapal one of the members of the second party and the lessee deposited rents for 2 successive years, as the proceedings dragged on from 1954 till the middle of 1957.

4. The Magistrate then proceeded to take evidence regarding possession Under Section 145(4). I find from the decipherable portion of the order-sheet of the Magistrate that the taking of oral evi- dence of 6 P Ws. and 7 D. Ws. covered the period from 20-10-55 to 1-8-56 and that arguments were heard only on 22-5-57 and 25-5-57. But it took another month for the Magistrate to pass his order. Such a leisurely way of dealing with the summary proceedings Under Section 145 must be severely con demned.

If only the Magistrate had cared to read the amended Section which had come into force by then, he would have seen that such proceedings should be _ concluded within a period of two months. But the present proceedings took 2 1/2 years to complete. On 24-6-57 line Magistrate proceeded to pass an order stating that from the evidence adduced before him it was a case of civil dispute but that he did not find any trace of evidence showing any apprehension of a breach of the peace and that as the very foundation for a proceeding Under Section 145 Cr. P.C. was wanting he was not empowered to proceed any further. So he dismissed the application.

When the matter was taken in revision to the Sessions Judge, he held that on the evidence before ,. the Magistrate it cannot be said that the view taken by the Magistrate was not a possible view and that mere existence of the dispute without any present fear of the breach of the peace was not sufficient to give jurisdiction to the Magistrate and that he was therefore not in a position to interfere with the Magistrate's order. But he also stated that it was an unhappy order on the part of the Magistrate and that he felt sorry that he was not in a position to give any relief. He therefore dismissed 'the revision petition. It is under those circumstances that the first party have filed the revision petition.

5. I have no hesitation in coming to the conclusion that the order of the Magistrate dropping the proceedings two and a half years after it was started on the ground that there was no apprehension of the breach of the peace, and without deciding the question as to who was in possession of the property on the evidence before him is totally perverse. There is no doubt that when he drew up proceedings Under Section 144 on the application of the first party he was satisfied that he apprehended a breach of the peace.

The Police report also satisfied him that there was likelihood of such a breach on account of the existence of a dispute between the first party and the second party. Even the second party appeared before him and stated that they feared a breach of the peace. The second party even prayed for the proceedings being converted into Section 145. The Magistrate also was satisfied that the proceedings had to be continued Under Section 145. Thus when the proceedings began both parties and the Police . and the Magistrate were agreed that the necessary condition existed for taking proceedings Under Section 145.

6. Having thus satisfied himself that a dispute existed regarding the property and that the said dispute was likely to cause a breach of the peace and both parties having filed that statements of claims before him the Magistrate had to proceed Under Section 145(4). That also the Magistrate did. Pending his decision of the claims of both parties of the possession of that property, the Magistrate attached the property because he felt that it was a matter of emergency.

All these actions were taken by him on the basis of his being satisfied that otherwise there will be a breach of the peace. He then put a member of the second party in possession of '(he land as the lessee of the Court. No doubt subsequent to the said leasing, Krishna Chandra Rudrapal, a member of the second party has been enjoying the said land without any disturbance of peace for over two years, as his possession was on the strength of the lease and not on the strength of his alleged claim to such possession.

7. It was then that the trial commenced regarding the. respective claims of the two parties, Evidence of both parties regarding that claims was also adduced before the Magistrate, The first party adduced evidence not only about that possession but also about the apprehension of breach of the peace. The second party also adduced evidence in respect of that possession but denied that there was any such apprehension. The Magistrate totally failed to see that a lot of time had passed after the original apprehension of the breach of the peace and that the second party himself had at that stage accepted the fact that there was such an apprehension.

The Magistrate again failed to see that it was to the interest of 'the second party at the time, of the enquiry to state that there was no such apprehension particularly as one member of the second party had managed to obtain possession of the land as lessee of the Court, It was to avoid a breach of the 'peace that the land was kept under attachment. After such attachment, no breach of the peace could possibly occur. The question before the Magistrate was therefore not whether there was likelihood of the breach of the peace when the matter came up for enquiry before him.

The question before him was whether it existed at the time when the proceedings were started and not when the property was in Court custody. No breach can occur when the Court is in possession. The Magistrate had satisfied himself that there was such likelihood when the proceedings started. The Magistrate had therefore no jurisdiction to hold two and a half years later after having taken evidence relating to possession that no such apprehension existed on the date when he passed the order.'

8. It is no doubt true that Under Section 145(5) ether party or any other person interested could show that no such dispute relating to the property exists at the time of the enquiry or has existed ab any time. It is this provision which has made the Magistrate deal with the case in the manner he did. But it is a misreading of Section 145(5) which has led the Magistrate into such an error. What a party can show at that stage is the absence of any dispute about possession and hence the absence of any likelihood of a breach of the peace.

But the evidence before the Magistrate let in by both parties only showed that a serious dispute existed between them about the possession. When once the fact of existence of the dispute was thus undisputed, it followed that there was likelihood M a breach of the peace as a result of that dispute, particularly as the Magistrate himself on the unanimous statements of both the parties and the Police was satisfied that there was such an apprehension, (9) It was clearly he duty of the Magistrate to fcave decided the right to possess the subject-matter of the dispute if it was possible for him to do so on the evidence before him instead of dropping the proceedings on the ground that there was no apprehension of the breach of the peace. He has totally failed to exercise the jurisdiction vested in him Under Section 145(4).

9. If it was not possible for him to decide the question of possession under Section 145(4) his duty was to proceed Under Section 146. Instead of thus following the procedure laid down in Sections 145(4) and 146 he simply dropped further proceedings. The Magistrate did not stop to think for a moment what the effect of his order would be. He had placed the land under attachment and put one member of the second party in possession as lessee. The effect of his dropping further proceedings would therefore be to place a member of the second party in possession of the land without deciding the dispute as between the two parties. The Magistrate failed to pass any order regarding the attachment effected by him and regarding the rents kept in Court deposit.

At least if he had got back the possession of the land from Krishna Chandra Rudrapal, a member of the second party and then released the attachment, he would have preserved status quo ante, I have no doubt that if he had done so, the parties would have started that fight again and there would have been an immediate apprehension of a breach of the peace again. Because the land was kept under attachment at the time he passed the order dropping the proceedings, the second party definitely got an advantage. It was the duty of the Magistrate to see that when he dropped the proceedings Under Section 145, he did not give any advantage to one party at the expense of the other. The entire trouble arose because the Magistrate failed to follow the provisions contained in Sections 145(4) and 146.

10. The order of the Magistrate cannot be allowed to stand and it is accordingly vacated. The Magistrate is directed to continue the land under attachment and to proceed further according to the provisions contained in Sections 145(4) and 146 Cr. P.C. I find that the depositions taken down by the Magistrate have become undecipherable as the records appear to have been affected by floods. If necessary the Magistrate will give an opportunity to both sides to let in fresh evidence regarding that respective claims to possession and proceed to decide the matter in accordance with the provisions of Section 145(4) and Section 146, Cr. P.C.


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