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M. Gurumurthappa Vs. Commissioner, Corporation of the City of Bangalore - Court Judgment

LegalCrystal Citation
SubjectCriminal;Property
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 5 of 1968
Judge
Reported inAIR1969Mys160; 1969CriLJ622; (1968)2MysLJ532
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145; Bangalore Municipal Corporation Act, 1949 - Sections 403
AppellantM. Gurumurthappa
RespondentCommissioner, Corporation of the City of Bangalore
Excerpt:
.....relying upon the provisions of the tripura forest act, passed the impugned order. when the tripura forest act is not applicable to the karnataka forest act, question of applying the provisions of law of different state and directing the state government to confiscate only 1/4th of the market value of the seized vehicle does not arise. impugned order was quashed. - therefore, where the magistrate after considering the materials before him is satisfied that there is no likelihood of a breach of the peace, the only proper thing for him to do is to decline to proceed under section 145 of the cr. if the magistrate is satisfied that there is no likelihood of a breach of the peace and therefore does not take any action under section 145, the parties have no right to insist that their..........that the second party had taken possession of this land on 3-11-1967, that the second party was in peaceful possession and that there was no likelihood of a breach of the peace. accepting that report, the magistrate made the order dated 6-12-1967 holding that there was no likelihood of a breach of the peace and he dismissed the petitioner's application for proceedings being taken under section 145 of the cr.p.c. aggrieved by the said order, the first party has filed the present revision petition.2. the schedule land is an extensive tract of about 135 acres used for raising grass. admittedly, the land belongs to the corporation of the city of bangalore. according to the petitioner, he had been a lessee of this property since the year 1954 till 3-11-1967 when the forcible possession.....
Judgment:
ORDER

1. This is a revision petition directed against the order dated 6-12-1967 made by the second Magistrate, Bangalore, in Criminal Miscellaneous Case No. 26 of 1967 on the file of his Court. The petitioner was the first party in that Criminal Miscellaneous Case and the Commissioner of the Corporation of the City of Bangalore was the second party. In that case, the petitioner had filed an application under Section 145 of the Cr.P.C. alleging that the second party had forcibly dispossessed him of the schedule land and that there was likelihood of a breach of the peace. He prayed that proceedings under Section 145 of the Cr.P.C. be taken, that the schedule land be attached and a Receiver appointed to manage the said land and that a declaration be made that the first party was in possession of that land. The learned Magistrate called for a report from the Police. The Police of Madiwala submitted a report to the effect that the second party had taken possession of this land on 3-11-1967, that the second party was in peaceful possession and that there was no likelihood of a breach of the peace. Accepting that report, the Magistrate made the order dated 6-12-1967 holding that there was no likelihood of a breach of the peace and he dismissed the petitioner's application for proceedings being taken under Section 145 of the Cr.P.C. Aggrieved by the said order, the first party has filed the present revision petition.

2. The schedule land is an extensive tract of about 135 acres used for raising grass. Admittedly, the land belongs to the Corporation of the City of Bangalore. According to the petitioner, he had been a lessee of this property since the year 1954 till 3-11-1967 when the forcible possession (according to him) was taken by the Corporation. According to the second party, the petitioner was only a licensee and not a lessee and the period of licence ended on 31-3-1967. The second party also denies having taken forcible possession. It is stated that the second party had power under Section 403 of the City of Bangalore Municipal Corporation Act, 1949, to enter on this land. It was alleged by the second party that on 3-11-1967 the second party took possession of this land with Police help and has been in peaceful possession since then. The question as to whether the petitioner was the lessee of this land or only a licensee is the subject matter of pending civil litigation and no opinion can be expressed about it one way or the other, in these proceedings.

3. The main contention urged by Mr. Devadas the learned Advocate for the petitioner is that the petitioner was dispossessed on 3-11-1967 by the show of overwhelming force and that the Magistrate should have taken proceedings under Section 145 of the Cr.P.C. and should have declared that the petitioner had been in possession within a period of two months prior to the appearance of the parties before him (the Magistrate) and should have forbidden any disturbance of the petitioner's possession until evicted in due course of law. On the other hand. Mr. S. V. Subramanyam the learned Advocate for the respondent has contended that the allegation that possession was forcibly taken on 3-11-1967 has been denied by the second party and that when the second party has been in peaceful possession and there is no likelihood of a breach of the peace, the Magistrate was fully justified in having dismissed the petitioner's application. I have heard the arguments of both the learned Advocates.

4. As pointed out by the Supreme Court in : 1959CriLJ1223 , Bhinka v. Charan Singh, the foundation of the Magistrate's jurisdiction under Section 145 ids an apprehension of the breach of the peace. Therefore, where the Magistrate after considering the materials before him is satisfied that there is no likelihood of a breach of the peace, the only proper thing for him to do is to decline to proceed under Section 145 of the Cr.P.C.

As observed in a recent Full Bench decision of the Madras High Court reported in : AIR1967Mad445 (FB), Athiappa Goundar v. Athiappa Pandaram, the preliminary order can be made only after the subjective satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists. If the Magistrate is satisfied that there is no likelihood of a breach of the peace and therefore does not take any action under Section 145, the parties have no right to insist that their dispute should be adjudicated upon by the Magistrate. It would be useful to refer to what has been stated, in this connection, in Full Bench decision of Allahabad High Court reported in : AIR1959All141 (FB), Ganga Bux Singh v. Sukhdin. In paras 13 and 14 at page 145, this is what has been stated:

'From the nature of the provisions it is clear that the Magistrate has been given this power primarily to preserve peace. The individual rights are affected on incidentally.

The nature of the enquiry is quasi civil. It is an incursion by the criminal court in the jurisdiction of the Civil Court. It is therefore, necessary that this incursion should be carefully circumscribed to the extent absolutely necessary for discharging the functions laid on the Magistrate of preserving the peace...

It is also clear that the parties have no right to get their dispute adjudicated upon by the Magistrate. Even on the receipt of the application the Magistrate may not think any action necessary. He may not take any action at all under section 145, Code of Criminal Procedure...........................

We need not emphasise that the provisions of the section clearly indicate that the parties, though they may inform the Magistrate, are not entitled under the law to a decision of the dispute. It is within the discretion of the Magistrate to take action or not and he may come to a decision or may express his inability to decide the matter.'

In the present case, it cannot be said that the refusal of the Magistrate to take action under Section 145 of the Cr.P.C. is arbitrary. Though the petitioner had alleged that he had been forcibly dispossessed, the report of the Police was to the effect that the second party was in peaceful possession and that there was no likelihood of a breach of the peace. The second party who had taken possession of the property, was an authority under the City of Bangalore Municipal Corporation Act who had statutory powers in respect of the property of the Corporation. There was already a civil litigation pending between the parties. It was on a consideration of all these factors, that the learned magistrate came to the conclusion that there was no likelihood of a breach of the peace and that no action need be taken under the provisions of Section 145 of the Cr.P.C. The petitioner has no right in law, to insist that the question of his possession should be adjudicated upon by the Magistrate, when the Magistrate has reached the conclusion that there was no likelihood of a breach of the peace. He will have to seek his remedy, if any, elsewhere and not under the provisions of Section 145 of the Cr.P.C. There is no good reason to interfere in the exercise of the revisional jurisdiction, with the order that has been made by the learned Magistrate.

5. In the result, this revision petition fails and is dismissed.

6. Petition dismissed.


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