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Ganga Singh Vs. Mohd. Shah Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1976CriLJ357
AppellantGanga Singh
RespondentMohd. Shah Khan and ors.
Excerpt:
- - once he takes steps he has to issue an order in writing which should contain the grounds of his being satisfied that a dispute likely to cause breach of peace exists......section 145/146 of the criminal p.c. a preliminary order was passed under section 145, cr.p.c. by learned magistrate as there was an apprehension of breach of peace in respect of certain property. the two parties were served with the notice and they appeared in court. learned magistrate was unable to decide as to which of them was in possession. he accordingly forwarded the record of the proceedings to the civil court under section 146(1) of the criminal p.c. while the matter was pending in the court of the learned munsiff an application was moved by one ganga singh praying that as he was in possession he impleaaed as a party. learned munsif opining that he had no jurisdiction to implead him as a party forwarded the whole matter to the learned magistrate. he allowed the application, and.....
Judgment:
ORDER

Hari Swarup, J.

1. This revision has been filed against the order of the learned Sessions Judge allowing the revision in proceedings under Section 145/146 of the Criminal P.C. A preliminary order was passed under Section 145, Cr.P.C. by learned Magistrate as there was an apprehension of breach of peace in respect of certain property. The two parties were served with the notice and they appeared in Court. Learned Magistrate was unable to decide as to which of them was in possession. He accordingly forwarded the record of the proceedings to the Civil Court under Section 146(1) of the Criminal P.C. While the matter was pending in the Court of the learned Munsiff an application was moved by one Ganga Singh praying that as he was in possession he impleaaed as a party. Learned Munsif opining that he had no jurisdiction to implead him as a party forwarded the whole matter to the learned Magistrate. He allowed the application, and after impleading Ganga Singh sent back the case to the learned Munsif. Against that order a revision was filed. The Additional Sessions Judge has allowed the revision, set aside the order of impleadment and has directed the learned Munsif to proceed to decide the reference as it was originally made to him by the learned Magistrate. Against that order the present revision has been filed.

2. The contention of the learned Counsel for the applicant is that the order passed by the learned Sessions Judge is contrary to law because the order of the District Magistrate impleading Ganga Singh as a party to the dispute was legal, just and proper and suffered from no error. The contention of the learned Counsel for the respondent, on the other hand, is that the learned Magistrate had no jurisdiction to implead any person a party to whom the preliminary order was not originally directed. It is urged that the addition of party at this stage would amount to change of the preliminary order and the Magistrate cannot do so.

3. Section 145, Cr.P.C. applies when a dispute likely to cause breach of peace exists concerning any land etc. If the Magistrate gets information about the existence of such a dispute he gets jurisdiction and also comes under obligation to take steps under Section 145, Cr.P.C. Once he takes steps he has to issue an order in writing which should contain the grounds of his being satisfied that a dispute likely to cause breach of peace exists. That order is to be served on the parties concerned in the dispute. The Magistrate therefore has to issue an order to all parties who may be concerned in the dispute. The information received by the learned Magistrate originally may be to the effect that only some persons are concerned in the dispute, he may later on get information that some others also were concerned in the dispute. The Magistrate under Section 145, Cr.P.C. can get information not only from the police report but also from other sources. The information may come from any person intereste. in the matter. The information may be either about the existence of the dispute or about the parties concerned in the dispute. Once the Magistrate gets information that some other person also is concerned in the dispute he can issue order to him also to show cause, because the purpose of S. 145, Cr.P.C. is the prevention of the breach o peace by any person. The impleading of the applicant, therefore, as a party cannot be said to be beyond the jurisdiction of the learned Magistrate.

4. The other contention too has no merit as the preliminary order is really as order recording the Magistrate's satisfaction about the existence of the dispute. The service of the order may be on any person who may be concerned in the dispute. By directing impleadment of Ganga Singh the learned Magistrate, in effect, only directed the service of the preliminary order to him. The impleadment cannot be deemed to have changed the nature or character of the preliminary order.

5. Further, it is also in the interest of justice and necessary for avoiding multiplicity of proceedings to let every person who claims to be in possession have an opportunity of putting forward his claim. If he will not be given such an opportunity and the finding of the Court goes against him the chances of the dispute continuing may still remain and the breach of peace may result. It is just and proper that the matter should be settled finally rather than left undecided so far as the claimant is concerned.

6. learned Counsel for the respondent contended that the permission should not have been granted by the learned Magistrate after a lapse of three years of the original issuance of the preliminary order under Section 145, Cr.P.C. The delay in applying for impleadment may be a factor to show that Ganga Singh was not in possession on the relevant date, but that by itself can be no ground for refusing him a hearing. It can only be a circumstance to be considered by the Court deciding about the possession of the parties. As the dispute has not yet come to an end and the matter has not been decided, the mere delay cannot be a ground to refuse impleadment.

7. The order of the learned Sessions Judge cannot accordingly be held to be valid. The Revision is allowed, the order passed in Revision is set aside, and the order passed by the learned Magistrate is restored.


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