T.N. Singh, J.
1. An order passed by the trial Court under Section 145 Cr. P.C has been challenged in this case by the second party, who contested the proceedings in the Court below in his capacity as Chairman of a Collective Farming Co-operative Society.
2. This litigation has a long history to which I do not feel disposed to refer in detail. Suffice it to say that its life appears to begin with that of the aforesaid Society which was born in the year 1969-70 when a scramble ensued for securing allotment of a land of a de-reserved fishery. Nevertheless, I must also express my dismay, disappointment and concern for the unabated tendency of the litigants to take resort to the provisions of Section 145 Cr. P.C. and the failure of the Courts below in this state to appreciate the scope of the legal provisions and to respond adequately and appropriately to the situation. I had occasions, and indeed several, when, in dealing with similar applications I noticed this failure and I am reiterating my anxiety once again as I consider it to be the duty of the higher judiciary to condition the legal motivation of the subordinate Courts and endow them thereby with a direction and purpose to render justice according to law see my recent judgment in Cri. Rev. No. 3/80. Henkholam v. Kadapti Tangkhul, decided on 21-8-84 : reported in 1985 Cri LJ 1381. If delayed justice is a curse, it is the duty of the judiciary to apply itself honestly and vigorously to trace its causes and cast off its spell.
3. The immediate cause of initiation of the proceeding in the instant case was an application by the first party made on 5-11-1979 for passing an order under Section 144 Cr. P.C. against the second parry and his men. The Police also recommended a proceeding to be drawn up under Section 144 Cr. P.C. against both the parties. But, the learned Magistrate, instead, passed an order on 7-12-1979, drawing up proceedings under Section 145 Cr. P.C., directing both parties to put in their respective statements of claim of actual possession of the disputed land. However, the proceeding eventually came to be dropped, but was surprisingly revived, pursuant to an order passed in revision by the learned Sessions Judge, who directed the proceeding to continue by allowing the first party's prayer for correction of the boundaries and the descriptions of the disputed land, which had been rejected by the trial Court.
4. A brief resume of either side's case pleaded in the trial Court may not be out of place. The first party, it may be mentioned, comprised of 25 petitioners, who described themselves as 'landless persons' in their petition, stating that they had been possessing the disputed land measuring 25 paris under Dag No. 2001, out of the dereserved area of Champrakhong Fishery, which they had reclaimed and were possessing without any obstruction from any quarter for the last 15 years. They also stated that they had applied for the allotment of the land at the rate of one pan each, but in the meantime, a Co-operative Society was formed, namely, the second party Society, which had also applied for allotment. After that what happened is a long history of the legal tussle between the parties to secure allotment in that allotment orders made by the authorities were challenged in this Court as also before the Revenue Tribunal and it is not necessary to refer thereto. However, the first party claimed that they had obtained a stay order from this Court, wherein they challenged an order dated 2-1-1979 passed by the Revenue Tribunal. However, the most significant aspect of the first party's written statement which must be noted is that they made a prayer for 'confirmation of their possession of the disputed land' to which the learned Magistrate also referred in the impugned order. It is also recited in the order that the second party filed their written statement on 23-7-81, wherein they alleged that they were granted allotment of 200.20 acres of land covered by various Dags including Dag No. 2001 relating to the disputed land and after they had paid the premium due therefor and had obtained delivery of possession as well they have been continuing in physical possession of the disputed land as the members of the Society had been cultivating the land and enjoying the fruit thereof. They asserted that there was no dispute regarding possession of the disputed land between the parties and that the same was being possessed peacefully by the second party. They prayed that the proceedings be, therefore, dropped declaring the second party to be in actual possession of the disputed land. Before I proceed to deal with the legal issue surfaced during the hearing of the instant petition, I must note that the preliminary order in this case under Section 145(1) Cr. P.C. was passed on 6-12-1979 and the final order under Sub-section (6) thereof, impugned the instant application, came to be passed only on 7-6-1982. Because, it reflects the long drag which the proceeding has suffered in the course of the trial.
5. Both sides examined witnesses and also filed documents in support of their respective cases. Learned Magistrate has discussed both oral and documentary evidence in detail. But, unfortunately, his findings contained in the last paragraph -- para 12, of the judgment has left large void and it is necessary therefore to refer thereto. He held that both parties have been 'contesting and disputing for the d/1 since long time', and that the proceeding land was a portion of the land allotted to the second party, but the allotment had not acquired finality as the matter was pending decision in the High Court He referred also to a report of S. D. O., Bishenpur, pursuant to which, the Deputy Commissioner, Central directed him to make delivery of possession of the concerned land to the second party after the crop grown thereon was harvested by the 25 persons who later came to form the first party in the present proceeding. He referred also to the fact that the second party failed to produce any document to evidence that the first party men were, in fact, evicted rather, on or after 14-12-1978, pursuant to the aforesaid order passed by the Deputy Commissioner, Central. After recording these findings he appeared to have lost track of the evidence in the case and observed that although the possession of the proceeding land was declared in favour of the second party in Criminal Misc. Case No. 50 of 1972 in the earlier proceeding under Section 145 Cr. P.C. 'some persons of both the parties in that case have been changed.' He disbelieved the D.Ws. merely on the imaginary ground that they 'had taken the d/1 to be the whole area allotted to them (second party)'. He then continued to observe that he was led to 'believe the depositions of the P.Ws. that the second party Society has some agricultural land on the southern side' was true and that they might be in possession of that area. To do justice to his findings, I propose to extract the last para of it:
Further it is very difficult on my part to convince that the 2nd party in whose favour possession was declared by this Court about 9 years ago will continue possession intact in such a big area and in the changing circumstances. To my mind the groups of parties i.e. the individuals and the society members are in possession in the suitable places of the dereserved Champrakhong area according to their capacity with disputes and the present d/1 has been more in possession of the individuals of the Ist party.
6. Several contentions were raised by the petitioner's counsel while assailing the validity of the impugned order to which it is necessary to refer briefly though the decision in the instant application obviously requires attention to be focussed mainly on the provisions of Sub-section (5) of Section 145 as indeed all other relevant provisions also of Sub-sections (1) and (4) to which I shall refer in due course. It is submitted in the first place that the material findings of the trial Court are based on conjecture inasmuch as the same are not supported by any evidence. Because, the trial Court found both parties to be in possession of specific plots of land though there was no evidence, and indeed none was discussed either to support this finding. Secondly, it is contended that the findings do not support the conclusion reached by the learned Magistrate. There is no finding, it is submitted, that the first party men were in 'actual possession' of the disputed land; the only finding which has been recorded, according to learned Counsel, is that the evidence of second party in support of their possession of the disputed land was not credible. A grievance is also made about the procedural irregularity committed by the trial Court, inasmuch as, It is submitted, much reliance was placed on a report said to have been submitted by S. D. O., Bishenpur though the said report had not been proved in the case. Principles of natural justice, it is submitted, were violated by the learned Magistrate by calling for the relevant records from the S. D. O., Bishenpur, to verify the copy of the report filed in the case by the first party and relying on the records of the case behind the back of the second party. However, the most important challenge to the proceeding is based on the want of jurisdictional competence relying mainly on the provisions of Sub-section (5) as also of Sub-section (6) of Section 145. It is submitted that it was incumbent on the learned Magistrate to drop the proceeding, or in other words, to 'cancel' the preliminary order passed under Sub-section (1) on perusal of the written statements filed by the parties without embarking upon any inquiry inasmuch as what was disputed by the first party was second party's 'right to possess' the proceeding land and the written statement did not disclose any claim 'as respect the fact of actual possession' of the proceeding land by the first party. Secondly, it is submitted, even the final order passed under Sub-section (6) lacks the jurisdictional finding, inasmuch as, there is no categorical finding in the impugned order that the first party and for that matter each of their men were in 'actual possession' of the proceeding land on the date of passing of the preliminary order.
7. In order to deal objectively with the legal contentions discussed above, the relevant provisions are extracted:
Section 145(1). Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possessionof the subject of dispute.
(2) & (3) xxx xxx xxx
(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possessthe subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under Sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-section (1).
(5) Nothing in this section shall preclude any party so required to attend, or any other person 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.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to Sub-section (4) be treated as being in such possessionof the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbances of such possession until such eviction; and when he proceeds under the proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in Sub-section (3).
8. It is needless to emphasise the care and caution which a Magistrate must exercise in dealing with a proceeding under Section 145 Cr. P.C. for several reasons. As held by this Court in Rahmat Ali (1984) 1 Gauhati LR (NOC) 29, the power under Section 145 is to be exercised in public interest to prevent breach of the peace as a duty is cast thereunder on the Magistrate to act in emergent situations. But, it is necessary to note that the power is not misused and the provision is not misapplied. Because, not infrequently parties take resort to criminal Courts to settle a civil dispute. Care should be taken to steer clear of pit-falls which beset the long journey on which a Magistrate may be set upon by private litigants interested in serving their personal cause and not really in preservation of peace in public interest Indeed, in a Special Bench case AIR 1949 Patna 146 : 1949 (50) Cri LJ 299, S.M. Yaqub v. T.N. Basu judicial concern about this course is vocally projected as indeed by this Court as well in its decision in Henkholam 1985 Cri LJ 1381 (supra).
9. Their Lordships of the Supreme Court also in their decision in Bhinka v. Charan Singh : 1959CriLJ1223 observed that the foundation of the jurisdiction of a Magistrate to pass an order under Section 145(6) is an apprehension of the breach of the peace and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. Thus, if preservation of the peace be the real object of Section 145 before the learned Magistrate decides to exercise his jurisdiction thereunder it behoves him to examine the conditions- precedent before acting thereunder and also to examine other relevant provisions empowering him in this behalf. Although it is the Executive Magistrate who is authorised to act in emergent situations to preserve the peace under various provisions of the Act, such as, Sections 107,144 and 145 Cr. P.C., in each case he has to act in a judicial manner and exercise his power strictly within the four corners of the relevant provisions. Indeed, in each case he has to mark out the ambit of his jurisdiction and, therefore, examine what provision in the particular fact and circumstances of the case can be invoked by him to preserve the peace.
10. On a plain reading of Section 145, it appears clear that jurisdiction to act thereunder arises in a case only when there is a 'dispute' as to 'actual' possession' of any immovable property, which is likely to lead to breach of the peace. However, the procedure to be followed in respect of such a dispute is indicated and also scope of the dispute which can be (not must be) resolved in a proceeding under Section 145. The Magistrate is not only not required to come to a positive and affirmative finding as to 'actual possession' of the subject-matter of dispute in favour of any of the parties to the proceeding as he is required to decide the question 'if possible' to do so, as per provision of Sub-section (4), but he is empowered also, as per Sub-section (5), to 'cancel' (i.e. to drop proceeding also) at any stage, the order made under Sub-section (1) by which he had taken upon himself responsibility of making the inquiry into 'claims' of the parties in accordance with Sub-section (4). However, his determination under Sub-section (6) acquires the character of a judgment in rem, al beit with a limited life, which is manifested by the language of the sub-section itself, as indeed, also of Sub-section (3) and proviso to Sub-section (4). The extent and reach of the final order passed under Sub-section (6), therefore, requires the Magistrate to guard against over-stepping his jurisdiction at each stage of the proceeding. Thus, as soon as the written statements of 'claims' are put in pursuant to the 'preliminary order' passed under Sub-section 145(1) it becomes his duty to examine if the 'claims' relate to the question of 'actual possession'. This follows from the language of Sub-section (5) itself. He need not tarry and wait until evidence is led. Indeed, there may be no occasion for receiving any evidence if no 'dispute' of the nature contemplated under Sub-section (1) is disclosed by the 'claims' put in by the parties in their written statements. He must, therefore, examine the nature of the claims and decide whether to proceed under Sub-section (4). He must also see if the 'dispute' was such as was capable of being decided by him under Sub-section (4). By merely putting in their written statements parties cannot compel him to proceed under Sub-section (4). If the claim is vague or is of a nature which projects not the 'facts of actual possession' of, but the 'right to possess', the subject-matter of dispute, he will be justified in dropping the proceeding or in other words, cancelling the order passed under Sub-section (1) in virtue of power vested in him under Sub-section (5). Because, whenever claim is made by any party in its written statement of 'right to possess' the party may also insist on leading evidence under Sub-section (4) to establish its claim. This is what is not permitted by law. It is true that evidence need not be stated in written statements but it is still necessary to state the nature of the right claimed by the parties. Thus, when, several individuals, joined together as a 'party' to the proceeding filed a single written statement it becomes the duty of the Magistrate to examine if the right claimed by them was such as related to the claim of 'actual possession' or of right to possess' and also whether or not claim was made of joint possession or of specified areas of the land in case the subject of dispute was: land. Because, in a case in which several persons file a joint written statement and still claim possession each in respect of unspecified areas it becomes a case of exclusive possession of specified areas of land by different persons. In such a case, it may not be possible for the learned Magistrate to decide the 'dispute' in the same proceeding without causing prejudice to the other side; so also, when nature of possession of each is not at all stated.
11. I may now examine what happened in the instant case. As alluded, the first party, which comprised 25 persons, filed a joint written statement wherein they did not at all indicate whether they were possessing the disputed land jointly or were in possession of specific areas thereof. What they stated was that they had applied for allotment of 25 paris of land at the rate of one pari each, but nothing beyond that was stated. However, as I have pointed out above, though the party did not make out such a claim, the learned Magistrate himself concluded on what evidence it is not known, that on both sides (the group of individuals of first party and the society members of the second party) possession of the disputed land was not held jointly but individually by each of the individual person on either side. What is more important to note is that the first party in their written statement claimed 'confirmation of possession', indeed the possession which they had obtained, according to them, as a result of the said order passed by the High Court in a matter relating to the 'allotment' of the land. The case history as also the substance of the grievance made by both parties in their written statements leave no room for doubt that what was agitated in the proceeding was the 'right to possess' the disputed land which was clearly beyond the scope of the learned Magistrate to determine under Sub-section (4)of Section 145. It was, therefore, incumbent on him to drop the proceeding on a perusal of the written statements filed by the parties for two reasons apart from the fatal error that he did not at all apply his mind to 2nd party's written statement pressing such a claim disputing the 'dispute' itself in terms of Sub-section (5). Firstly, it was not possible for him to decide the question of actual possession of the disputed land on the basis of written statement filed by the first party which was silent as to the nature of the claim of possession of each of the individuals who comprised the first party. Secondly, as alluded, the dispute itself projected in the written statements filed by both sides was not such as he was entitled under Sub-section (4) to decide because it was a question not of actual possession of, but the 'right to possess', the disputed land, which was agitated in the written statement.
12. Several decisions were cited at the Bar during the hearing of the matter to which even a brief reference is necessary because some of the decisions do support the view I have taken. In AIR 1938 Patna 511 : 1939 (40) Cri LJ 17, (Gulab Kuer v. Ganouri Koeri), it was held that though an enquiry under Section 145 is not necessarily illegal in a case where landlord claimed a large number of plots to be in his possession, while different sets of tenants claimed different plots separately, it was necessary in such a case that the Magistrate should apply his mind to the case of each individual holding inasmuch as conclusion should not be arrived at one general evidence and there was, on that score, a likelihood of prejudice being caused to one of the parties. This decision was relied on by the same Court in two subsequent decisions in AIR 1939 Patna 353 : 1939 (40) Cri LJ 749, (Raja Gope v. Sukan Singh) and AIR 1946 Patna 389 : 1946 (47) Cri LJ 1013, (Leela Singh v. B. P. Singh), wherein also the question of prejudice was considered. In both the cases, however, 1 must say that the scope of Sub-section (5) of Section 145 did not come up for consideration and the decision apparently was based on general principles of Criminal Jurisprudence. However, the Punjab and Haryana High Court in Kirpal Singh v. State of Punjab, 1975 Cri LJ 1422 had an occasion to deal with the provision of Section 146(2) Cr. P.C. when it was observed that if the Magistrate was of opinion that none of the parties was in possession or was unable to decide as to which of them was in possession of the subject of dispute in a proceeding under Section 145 he could attach the subject of dispute and draw up a statement of fact and forward the record of the proceedings to a civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute. Indeed, in this case also the scope merely of Sub-section (4) and not of Sub-section (5) of Section 145 only came up for consideration of the Court. Five learned Judges of the Calcutta High Court in a decision reported in 32 Cal WN 1173 : 1929 (30) Cri LJ 69, Agni Kumar Das v. Mantazaddin were seized of the question of interpretation of the terms 'actual possession' and 'dispute' of Sub-section (1) of Section 145. The majority took the view that the term 'actual possession' meant actual physical possession and the word 'dispute' meant actual disagreement existing between the parties even though the question as to the right of possession had already been decided by the civil Court. This decision, in my opinion, supports the theory that there must be a disagreement as to the same right, namely, both sides must disagree on the question of 'actual possession' and accordingly it would not be 'dispute' contemplated under Sub-section (1) of Section 145, if one party claimed 'right to possession' and other party asserted 'actual possession' of the disputed land. Indeed, this view corresponds with the view taken by me. In AIR 1940 Patna 135 : 1940 (41) Cri U 171, Syed Zafar v.Babu Jugeshwar) it was held that there was no distinction between the two situations, namely, in a case in which one party claimed exclusive posession while another party claimed to be in joint possession along with them and the case in which each claimed exlusive possession of the entire area. Thus, what is necessary to give jurisdiction to the Magistrate to act under Section 145 is the fact that it must be made known to him as to how each partystaked its claim to 'actual possession' of the land, whether jointly by all of thgem or exclusively by some of them. The same proposition find support in the decision rendered by the Division Bench in AIR 1924 Cal 444 : 1923 (23)Cri LJ 304, Joymangal Singh v. Kanta Gope wherein also in a dispute relating to a joint property the nature of cosharer's right as that of an 'exclusive' possessor thereof was held to confer jurisdiction on the Count to make an order under Section 145. In : AIR1966Ori49 . Alaragshi Bibi v. Ujala Bibi the Court held that the legal proposition that the possession of one coshrer is the possession of others in the eye of the law was not relevant in a proceeding under Section 145 Cr. P.C. On a survey of the above authorities, I have no doubt that although in none of these cases, the scope of Sub-section (5) of Section 145 came up for consideration of the Court nothing has been said in any of the decisions to suggest that the view taken by me is not a reasonable view. Rather, as alluded, in some of the decisions support, though faint and oblique, still, it to be found for the view taken by me.
13. I must also state why I considered it necessary to deal in this case in detail the scope of Sub-section (5) of Section 145 Cr. P.C. I must confess that the fact situation of the case acted as an eye opener and compelled me to do so. The enquiry under Sub-section (4) in this case continued to limp for over two years unnecessarily defeating the very purpose and object of the provision embodied under Section 145 which requires cases only of emergent situation to be dealt and indeed, therefore, with utmost dispatch because the first part of Sub-section (1) of Section 146 is not invariably attracted in all cases. Thus though not time limit is statutorily specified for disposal of a proceeding under Section 145, the very provision of Sub-section (5) itself indicated that such proceedings are not to be protracted and prolonged. The provision should, therefore, receive its due recognition to effectuate the legislative will.
14. For the foregoing reasons, I have no hesitation to hold that the impugned order passed by the learned Magistrate, over-stepping his jurisdiction conferred under Sub-section (5) of Section 145, is not sustainable in law, inasmuch as, he proceeded to take evidence of the parties without applying his mind to the written statement of the second party and considering whether on the allegation made in the two written statements the 'dispute' was such as one contemplated under Sub-section (1) of Section 145 or whether it could be resolved under Sub-section(4) thereof. That apart, I have also no hesitation to hold that the final order passed by him under Sub-section (6) itself was void and without jurisdiction, as contended inasmuch as, there is no categorical finding by the learned comprised the first party were in 'actual possession' of the disputed land, because his finding is based on negative evidence and also on surmises and conjecture.
15. In the result, the application succeeds and is allowed. The impugned order is set aside. The rule is made absolute.