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Mohd. Ishaq and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1945All60
AppellantMohd. Ishaq and ors.
RespondentEmperor
Excerpt:
.....before him. ibrahim, on 13th december 1943, and upon a consideration of his statement on oath, the learned magistrate was not satisfied that a dispute likely to cause a breach of the peace existed. 5. there was nothing in this application which could alter the circumstances as they existed and the second order passed by the learned magistrate on 14th january 1944-(the order passed when the complainant appeared later in the day and presented the application just mentioned)-does not state that the learned magistrate was now satisfied that a dispute likely to cause a breach of the peace did exist. besides, even if the application filed by the complainant on 14th january 1944, be treated as a fresh application praying that action be taken under section 145, it is clear that no valid order..........mohamad ibrahim, was examined and he supported the allegations made in the application. the learned magistrate thereupon passed the following order: 'to s.o. kotwari for report and notice to opposite party.' this order was passed on 13th december 1943, the day on which the application was filed and the complainant was examined. the reader of the court, who appears to be in the habit of interpreting and elaborating the orders of the learned magistrate, explained in the order which he wrote on the order sheet that the notice which was to be issued to the opposite parties was to be a notice directing them not to do anything which would have the effect of bringing about a change in the things as they stood on the spot (koi radd-o-hadal mauqe par na karen) until further orders. the.....
Judgment:
ORDER

Verma, J.

1. This revision-petition has arisen out of an application filed on 13th December 1943, by one Mohammad Ibrahim in the Court of the Sub-Divisional Magistrate of Dehradun praying that action be taken under Section 145, Criminal P.C. Having regard to the orders that have been passed by the Courts below, it appears to me necessary, before even stating the facts in detail, to reproduce those portions of Sub-section (1) of Section 145, Criminal P.C. which are material for the purposes of this case. They are as follows:

Whenever a...Sub-Divisional Magistrate...is satisfied...that a dispute likely to cause a breach of the peace exists concerning any land or water...within the local limits of his 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...within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

The definition of the expression 'land or water'' is given in Sub-section (2). The subject of dispute in this case is a brick-kiln situated at a place called Ajabpur. Mohd. Ibrahim (to whom I shall hereafter refer as the complainant) named four men, Mohammad Ishaq, Maqbul Ahmad, Noor Ahmad and Sharfuddin, as the opposite parties to his application. But briefly, the allegations contained in this application were that the complainant was a resident of Sitapur and was a stranger to Dehradun, that he intended to run a brick-kiln at Dehradun, that on making enquiries he found that Mohd. Ishaq and Maqbul Ahmad owned a brick-kiln at Ajabpur and were willing to sell it, that negotiations were started and ultimately Mohd. Ishaq and Maqbul Ahmad agreed to sell their brick-kiln to the complainant for Rs. 2400, that on 30th August 1943, a sum of Rs. 400 was paid to Ishaq and Maqbul as earnest money and they executed a receipt therefor and also promised to have leases of the land on which the brick-kiln stood executed by the various zamindars in favour of the complainant, that 'opposite parties 1 to 3 failed to carry out their promises of the leases and asked the petitioner to co-operate,' that the complainant approached the various zamindars and in the presence of Noor Ahmad, who is the manager of the brick-kiln on behalf of Mohd. Ishaq and Maqbul Ahmad, advanced certain sums of money to certain zamindars on various dates and entered into agreements with them, that 'opposite parties 1 to 3 had clearly put the petitioner into possession of the brick-kiln area and further assured that the zamindars will also put the petitioner into possession on receiving their consideration, which they did,' that the complainant appointed a chaukidar to look after the brick-kiln, that he had also put his locks on the property in question on 30th August 1943, that the opposite parties had, on or about 1st December 1943, broken open the complainant's lock and had forcibly turned out ''the labour which the petitioner had sent through his man Amin Chand from the field on 11th December 1943, that 'the petitioner came to Dehradun to establish his brick-kiln on 11th December 1943, but found that opposite parties Nos. 1 to 4 had entered on the land on 1st December 1943 and forcibly dispossessed the petitioner from the due use and occupation of the land by him and for which he had paid consideration to all concerned, and had also broken the petitioner's lock,' and that opposite parties 2 and 4 were on the spot and opposite parties 1 and 3, though they were at that time absent at Saharanpur, had actively abetted 'the criminal activity of opposite parties 2 and 4.' It was further stated that the complainant apprehended 'danger and breach of the peace from the threatening attitude of the opposite parties,' and it was prayed that 'action under Section 145, Criminal P.C., be taken against them.'

2. When this application was filed, the complainant, Mohamad Ibrahim, was examined and he supported the allegations made in the application. The learned Magistrate thereupon passed the following order: 'To S.O. Kotwari for report and notice to opposite party.' This order was passed on 13th December 1943, the day on which the application was filed and the complainant was examined. The Reader of the Court, who appears to be in the habit of interpreting and elaborating the orders of the learned Magistrate, explained in the order which he wrote on the order sheet that the notice which was to be issued to the opposite parties was to be a notice directing them not to do anything which would have the effect of bringing about a change in the things as they stood on the spot (Koi radd-o-hadal mauqe par na karen) until further orders. The order on the order sheet further stated that the case would be taken up on 14th January 1944. The notices which were issued substantially complied with the direction given in the order on the order sheet. The police submitted a report on 26th December 1943. Briefly put, it was stated in this report that it appeared from investigation that the dispute between the parties was in respect of the ownership of the brick-kiln, that the complainant, Mohamad Ibrahim, had* already instituted proceedings in the civil Court, that the dispute was entirely of a civil nature and was not one in which it was necessary for the criminal Courts to interfere and that in filing this application in the criminal Court the desire of the complainant appeared to be to put undue pressure on the opposite parties. The police submitted a further report on this date, viz. 26th December 1943. This appears to have been in consequence of an application filed by the complainant on 21st December 1943, alleging that the opposite parties had disobeyed the notice issued to them and praying that action be taken against them for contempt of Court. The substance of this second report of the police was that the allegations made by the complainant in his application dated 21st December 1943, were not correct. The case was taken up on 14th January 1944, and the following order was passed by the learned Magistrate:

It appears from police report that this is a civil matter and the parties should seek their remedy there. Any action taken by either party which is likely to cause a breach of the peace will be immediately dealt with. Parties are therefore warned. These papers may be filed.

In the order which was recorded by the Reader of the Court on the order sheet it was stated that the complainant had been absent when the case had been called on for hearing and that his application was dismissed for want of prosecution. Sometime later on that day the complainant appeared and filed an application stating that the Court had passed an order on that day without calling upon the complainant to substantiate his complaint by evidence, that the order was highly prejudicial to the complainant, and that the opposite parties had taken forcible possession of the property, and praying that the order passed earlier in the day be vacated and parties 'be called upon to produce evidence' and that 'the Court may then give its ruling.' It was further stated in this application : 'There is a genuine cause which the complainant is fighting and even if the kiln is working for the military, the opposite party has got no right to work it. Complainant can do the same for the military and carry on the war effort. A date for producing evidence may kindly be given.' The learned Magistrate passed the following order on this application: 'Summon parties to produce evidence' and the Reader, as usual, recorded an order on the back of the application stating that the next date of hearing would be 26th January 1944, and explaining that on that date the complainant was to appear with his evidence (mai sabut hazir awe) and that the opposite parties were to be summoned by means of notices issued to them (bazariye notice talab howen). He also recorded an order on the order sheet stating that the parties be summoned for 26th January 1944. Notices which were issued in pursuance of this order were on the usual printed form headed: 'saman banam shakhs mulzim' (summons to an accused person) and called upon the persons summoned to appear in the Court on 26th January 1944, 'to answer a charge under Section 145' (bagharaz jawab dehi ilzam dafa 145). On 26th January 1944, an application was filed on behalf of the opposite parties pointing out that the case had been dismissed after the perusal of the police report on 14th January 1944, alleging that there was nothing in the Criminal Procedure Code which authorised criminal Courts to restore cases once dismissed, stating that the complainant had already filed a civil suit in respect of the rights which he alleged to have in the brickkiln which was the subject-matter of dispute between the parties, and praying that the proceedings be dropped. The order of the learned Magistrate on this application was in these words : 'Evidence will have to be taken as per my order dated 14th January 1944.' The corresponding order recorded by the Reader on the order sheet explained that the application of the opposite parties was dismissed and stated that the vakil for the opposite parties wanted time for filing an application for revision against the learned Magistrate's order. It was further stated that the case would come up on 5th February 1944. The opposite parties filed an application for revision in the Court of the learned Sessions Judge on 2nd February 1944. The record was summoned and the learned Judge passed the following order on 5th February 1944:

I have been through the file. The learned Magistrate ought not to have restored proceedings for the same case after ordering them to be filed, but I do not consider this legal defect in procedure sufficient to recommend that the proceedings be dropped as it was open to the other party to put in a fresh application under Section 145, Criminal P.C. In fact, the first order of the learned Magistrate after issuing notice under Section 145, Criminal P.C. and without saying that no apprehension of breach of peace exists cannot be said to be a good order. I therefore reject this application for revision.

3. It appears to be quite clear to me that almost all the orders passed in this case were against not only the words but also the spirit of Section 145, Criminal P.C. The principle on which that section and similar other provisions in the Code are based is well-known, and it should not be necessary now to explain it. The record of this case has, however, created the impression on my mind that it is necessary to explain that principle once more. I shall do so briefly. Broadly speaking, it is not the function of the criminal Courts to have anything to do with disputes relating to property. Their function is to punish people who commit offences. It is the function of the civil Courts to hear and decide cases concerned with rights to property. It is, however, the function of the criminal Courts to prevent breaches of the peace and it was realised that a breach of the peace might be caused by persons who had a dispute with regard to property. Section 145 and certain other sections of a like nature were therefore incorporated in the Code with the object of enabling the criminal Courts to take suitable action in such cases to prevent breaches of the peace. But the jurisdiction thus conferred is a very limited one and is carefully restricted to a prevention of the apprehended breach of the peace, On the one hand, it is not right for the criminal Courts to intervene in a matter which ought to be adjudicated upon by the civil Courts, and, on the other, the public ought not to be allowed to waste the time of the criminal Courts by bringing to them a matter which is obviously of a civil nature and to attempt to put undue pressure on the opponent by having recourse to the criminal Courts. Such an attempt is an abuse of the process of the Court. The Legislature, therefore, laid it down in clear words that whenever a matter of this nature was brought to the Court of a Magistrate, it was the Magistrate's duty, not only to be satisfied that there was a dispute which was kely to cause a breach of the peace, but also to make an order in writing stating the grounds of his being so satisfied before he could require the parties to appear before him.

4. Although that part of the learned Magistrate's order dated 13th December 1943, by which he ordered notice to be issued to the opposite parties was not properly worded the order on the order sheet saved it from being illegal and the notices that were issued to the opposite parties only required them not to make any changes. The point to be noted, however, is that, upon a perusal of the application filed by the complainant, Mohd. Ibrahim, on 13th December 1943, and upon a consideration of his statement on oath, the learned Magistrate was not satisfied that a dispute likely to cause a breach of the peace existed. It is further clear that the first order passed by the learned Magistrate on 14th January 1944, rested on the ground that no such dispute existed. The question that arises is whether any fresh materials were laid be. fore the learned Magistrate when the complainant filed his application of 14th January 1944, which could or, at any rate, did satisfy the learned Magistrate that a dispute of the nature mentioned in Section 145 existed.

5. There was nothing in this application which could alter the circumstances as they existed and the second order passed by the learned Magistrate on 14th January 1944-(the order passed when the complainant appeared later in the day and presented the application just mentioned)-does not state that the learned Magistrate was now satisfied that a dispute likely to cause a breach of the peace did exist. The notice which was issued to the opposite parties on this occasion was a notice of the nature contemplated by Sub-section (1) of Section 145 when an order has been made in accordance with the provisions of that sub-section. It is apparent, however, that the learned Magistrate never made any order in accordance with the provisions of the sub-section. I am not able to appreciate the point of the learned Judge's observation that it was open to the complainant to put in a fresh application under Section 145, Criminal P.C. The fact remains that no such application was ever filed. Besides, even if the application filed by the complainant on 14th January 1944, be treated as a fresh application praying that action be taken under Section 145, it is clear that no valid order was passed by the learned Magistrate in accordance with the provisions of Sub-section (1) of Section 145, stating the grounds of his being satisfied that a dispute likely to cause a breach of the peace existed. Furthermore, in expressing the opinion that the first order passed by the learned Magistrate on 14th January 1944, was not a good order, the learned Judge has missed the point that the duty cast by the section on the Magistrate is that, before he makes the order mentioned in Sub-section (1), he should be satisfied that there is an apprehension of a breach of the peace and that he should state in writing the reasons for his being so satisfied. It is not the law that, before the Magistrate can dismiss the application and order the papers to be filed, he must state the reasons for his not being satisfied that there is an apprehension of a breach of the peace. As for saying that no apprehension of a breach of the peace existed, it is clear to my mind that the meaning of the first order passed by the learned Magistrate on 14th January 1944, was that the learned Magistrate was, not satisfied that a dispute likely to cause a 'breach of the peace existed. The learned Judge is also wrong in saying that the Magistrate's first order of 14th January 194-4, was passed after notice under Section 145 had been issued and was therefore bad. As I have shown above the notices issued in pursuance of the order of 13th December 1943, were not notices under Section 145. Those notices only prohibited the opposite parties from making any changes in the property. Then, again, the Courts below have lost sight of the important fact that the complainant, Mohd. Ibrahim, had already instituted a suit in the civil Court. In these circumstances, no action should have been taken by the learned Magistrate either on the application filed by the complainant on 13th December 1943, or on the application filed by him on 14th January 1944. Every single circumstance in this case shows that the learned Magistrate never had any grounds for being satisfied that a dispute of the nature mentioned in Sub-section (1) of Section 145 existed and that he was never so satisfied. This is not a case in which a Magistrate, who was satisfied that a dispute likely to cause a breach of the peace existed, failed to express himself in clear language. This is a case in which the Magistrate was never satisfied that such a dispute existed, and so he never had any jurisdiction to take any action. For the reasons given above I allow this application for revision and quash the entire proceedings.


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