1. This reference under Section 438, Criminal P. 0. from the Sessions Judge, Lower Assam Districts arises out of a proceeding under Section 145, Criminal P.C. Facts are fully stated in the order of reference.
2. On 24-10-1952 petitioner Keramat Ali initiated the proceeding under Section 145 by a petition. His case was that he and 38 other persons were allotted an area of 585 bighas of land by revenue authorities and that the Mandal had delivered possession of the said land to them. They had learnt that the second party were preparing to remove forcibly paddy grown by them on an area measuring 555 bighas. The petitioner apprehended a breach of the peace.
3. The learned Magistrate asked for a re-port from the police and acting on the report received, he passed the preliminary order under Section 145, Criminal P.C. and also directed the police to attach the disputed land in view of the apprehended breach of the peace. The land attached was 585 bighas in 39 plots appertaining to Odalani Kismat Block No. 7 of Lanka Mauza out of which 300 bighas had standing crops on it.
Later the second party put in their statements claiming that by order, dated 17-4-1945 passed by the Colonisation Officer the lands in dispute were allotted to them and in pursuance of that order they had paid the requisite premium and had occupied and improved this land. The case dragged on far about two years and ultimately on 11-1-1954 the District Magistrate, Nowgong withdrew the case to his file and retransferred it to the file of Sri B.R. Das, Magistrate, 1st class.
When the case came up before him on 12-1-1954 petitioner's counsel asked for an adjournment on the ground that the petitioner and his witnesses were absent and he probably was ill. The learned Magistrate rejected the petition and passed the following order:
Case received by transfer. 2nd party present without witnesses. 1st party absent and his lawyer prays for time. The cause shown is not sufficient for an adjournment. The case is a long pending one. So no further time is allowed. The 2nd party is also not ready and no steps taken. Case struck off. The attached land will remain attached till possession is given by proper authority.
The petitioner assailed the correctness of this order by his revision petition. The learned Judge was of the view that the granting or refusal of an adjournment was entirely within the discretion of the District Magistrate and that in any case he was entitled to strike off any proceeding if he was satisfied that there was no present apprehension of the breach of the peace. He found justification for his striking off the proceeding even though the learned Magistrate had not recorded any finding in express terms that apprehension of a breach of the peace had ceased to exist.
In his view the duration for which the case had remained pending alone was enough to come to that conclusion and this he presumed was the reason for striking off the proceeding. But in this view the direction that the land should remain under attachment he thought was bad in law and in contravention of the provisions of Section 146, Criminal P.C. He therefore recommended that the direction regarding attachment be cancelled.
4. It appears to me that the learned Sessions Judge in making his recommendation has been influenced to a very great extent by the words "case struck off" appearing in the order of the learned Magistrate. The circumstances under which he passed the order are undisputed. The petitioner was absent. He did not think that there was sufficient ground for granting an adjournment.
I have no basis for holding that his discretion was not judicially exercised or its exercise was improper in any way. He certainly had the power to refuse adjournment and the result was that he had no evidence from the side of the petitioner. The opposite party also had no witnesses. The learned Magistrate did not at all apply his mind to the question whether the danger of a breach of the peace between the parties had ceased to exist. In the absence of evidence from both sides he passed an order, two parts of which are somewhat difficult to reconcile.
If he meant to strike off the case, he could do so only on the finding that there was then no danger of the breach of the peace, a finding which has not been arrived at by him and which may not be read into the order or presumed merely because the case had gone on for a very long time. The fact that he directed the land to be attached would on the other hand indicate that though he used the words "case struck off", he was not declining jurisdiction in the matter.
In the absence of any evidence on possession he could not decide which of the two parties was actually in possession. In these circumstances it seems to me that it would be more appropriate to read the order as directing the continuance of attachment under Section 146. An order under Section 146, Criminal P.C. can be passed only after an enquiry into the fact of possession. If he decided that none of the parties was then in such possession, or was unable to satisfy himself as to which of them was in possession he could 'attach the property.
But where both parties are in default and there is no evidence before the Magistrate on the basis of which he could determine whether any of the parties was in possession of the property or not, he may hold that he is unable to satisfy himself as to which of them was in possession. This course would be open to him and the order interpreted this way would appear to be quite legal.
It was held in - 'Bejoy Madhub Choudhury v. Chandra Nath' 14 Cal WN 80 (A) where the parties did not file their written statements or adduce evidence, though more than two months had expired from the date the proceeding was drawn up. but applied for time to file the written statements the Magistrate did not act without jurisdiction in refusing to grant time & in attaching the disputed property under Section 146, Criminal P.C. on the failure of the parties to adduce evidence.
I entirely agree with the law as enunciated In this case. The learned Magistrate had jurisdiction in the circumstances to attach the property. The case therefore though said to have been struck off was actually not struck off. An order which was within the competence of the learned Magistrate was passed and in the absence of a finding that there is no danger of breach of peace between the parties, that was the appropriate order. When he directed the proceeding to be struck off be merely meant to terminate it. The recommendation of the learned Sessions Judge in the case is not therefore accepted. The petition of revision is dismissed.