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Javaregowda and ors. Vs. Mullegowda - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 340 of 1966
Judge
Reported inAIR1967Mys169; 1967CriLJ1153
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(1) and (3)
AppellantJavaregowda and ors.
RespondentMullegowda
Appellant AdvocateS. Rangaraj, Adv.
Respondent AdvocateB. Gopalayya, Adv.
Excerpt:
.....with the other members of his party and that the first party members were disturbing his possession and that on account of that there was likelihood of breach of the peace on 13-5-66, the first party members complained that they were in possession of the lands and that the members of the other party were disturbing their possession and that on account of that, there was every likelihood of breach of the peace......and that in any case the application was highly belated. they also urged that they cannot be made parties to the proceedings but they could he allowed to participate in the proceedings as observers.7. it could be gathered from the order of the learned magistrate that the second party members had no objection for impleading the petitioners as parties to the proceedings.8. the magistrate rejected 1. a. 11 application on two grounds, namely. (1) that the names of the petitioners were not found in the report of the sub-inspector of police and (2) that the application filed by them was highly belated.9. the correctness of this order has been challenged before me in this revision petition.10. before the enquiry was started the petitioners prayed that they should be added as parties to the.....
Judgment:
ORDER

1. This revision petition is directed against the Order or the learned First Class Magistrate, Krishnarajnagar, in Criminal Misc. No. 14 of 1966

2. The first member of the second party filed a complaint on 25-4-66 before the Sub-Inspector of Police of K R Nagar stating that he was in possession of survey numbers 284. 287, 288, 289 and 290 of Chandagal village alone with the other members of his party and that the first party members were disturbing his possession and that on account of that there was likelihood of breach of the peace On 13-5-66, the first party members complained that they were in possession of the lands and that the members of the other party were disturbing their possession and that on account of that, there was every likelihood of breach of the peace.

3. The Sub-Inspector of Police sent his report dated 23-5-66 to the Court of the First Class Magistrate, K. R. Nagar, slating that on account of the dispute in respect of the said lands between the two parties, there was likelihood of the breach of the peace and that immediate action should be taken to restrain both the parties from entering upon the said lands

4. On the basis of this report, a preliminary order under Section 145(1) of the Code of Criminal Procedure was passed on 23-5-66 by the Magistrate restraining both the parties not to enter upon the lands in question.

5. The parties were directed to file their statements in support of their respective contentions by 15-6-66.

6. A few days later, i.e., on 25-8-66, the petitioners in this revision petition filed an application (I. A. II) stating that they were in possession of the lands, in regard to which dispute existed and that they might be added as parties as heard in the matter This application was opposed by the first member of the first party on the ground that they were not in possession of the lands in question and that in any case the application was highly belated. They also urged that they cannot be made parties to the proceedings but they could he allowed to participate in the proceedings as observers.

7. It could be gathered from the order of the learned Magistrate that the second party members had no objection for impleading the Petitioners as parties to the proceedings.

8. The Magistrate rejected 1. A. 11 application on two grounds, namely. (1) that the names of the petitioners were not found in the report of the Sub-Inspector of Police and (2) that the application filed by them was highly belated.

9. The correctness of this order has been challenged before me in this revision petition.

10. Before the enquiry was started the petitioners prayed that they should be added as parties to the proceedings on the ground that they were in actual possession of the lands in regard to which a dispute exists and that they may be board in the matter.

11. The proceeding under Section 145 of the Cr. P. C., is of a summary nature intended to maintain peace, till the title to the respective claimants is adjudicated upon by a competent civil court. Section 145(1) authorises the Magistrate in the given circumstances to record order requiring parties concerned in such a dispute to attend his court in person or by a pleader within which time to be fixed by the said Magistrate and to put in written statements of the respective claimants in respect of the factual possession of the subject of dispute. The initial order no doubt is intended to fix time within which claimants have to come in but it would not be very material even if after the date was fixed but before the opening of the actual enquiry parties are added. If a party is added after the initiation of the proceeding, there is no necessity for a fresh proceeding provided the party added is concerned with the dispute which is the foundation of the proceeding. If anyone claiming to be concerned in the dispute is not allowed, then, it becomes necessary to start fresh enquiry again. In order to avoid this, it would be desirable to add all parties who are concerned with the subject of dispute. The purpose of the enquiry under Section 145 is to declare the possession of the party actually in possession and as soon as the Magistrate decides to investigate under the Section, Sub-section (3) requires that the order must be duly notified. The reason is obvious, because it is possible that if the order is not notified on the spot and in manner provided by the Code, persons may collude to have an order passed as to possession of a property in favour of one or the other so as to deprive the person actually in possession. Persons whose names are not mentioned in the order tinder Section 145(1) but who on the order being notified, appear and file written statements as being persons interested in the proceedings before the Magistrate, become parties and an order passed in their favour is valid. Vide: Leela Singh v. B P Singb. AIR 194G Pat 389.

12. This Court, in The Secy. Mysore Board of Wakfs. Bangalore v. Mahaboob Ali Mani-yar. (1962) 40 Mys LJ 518: (AIR 1962 Mys 128) has held that according to S. 145 (5). Cr. P. C. the Magistrate had jurisdiction to implead any person interested in the proceedings.

13. In the instant case, the petitioners claim to be in actual possession of the land in question. They have stated that they havefiled suits against the first member of the first party and obtained an order of temporary injunction in the civil court in respect of these lands and in these circumstances it cannot be said that they arc not parties interested in the subject of dispute.

14. In the result, this revision petition is allowed and the order of the learned Magistrate is set aside with direction that the petitioners in this revision petition should be impleaded us parties to the proceedings. The Magistrate is directed to dispose of the matter expedition sly.

15. Revision petition allowed.


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