1. The applicant instituted proceedings under Section 145, Criminal P. C., against Ashfaq Husain Khan alleging that there was a dispute between them about possession over a house which was likely to cause breach of peace. The Magistrate got an enquiry made by the Police who reported that there was a dispute and that it was likely to result in breach of peace. The Magistrate thereupon passed the preliminary order calling upon the parties to file written statements in support of their claims of possession. The date fixed for filing of the written statements was 22nd May 1948. When the case was called out on that date the applicant was absent while the opposite party was present. The Magistrate dismissed the applicant's complaint 'in default' and released the house from the attachment. The applicant appeared in the Court shortly after the dismissal of her complaint and presented another complaint on the same allegations. The Magistrate treated it as a fresh application and again sent it to the police for enquiry and report and the police again reported that the dispute was continuing and was likely to give rise to breach of the peace. The Magistrate ordered the parties to file written statements. When the parties appeared on the next date it was brought to his notice that he had not passed the preliminary order on the fresh application. In reply it was suggested by the applicant that the second application was really no fresh application but an application to set aside the order of the 22nd May 1948 and to revive the proceedings started on the first complaint. The Magistrate did not agree with the applicant's contention. He treated the second complaint as a fresh complaint. The applicant being aggrieved by his order went up in revision to the learned Sessions Judge. The learned Sessions Judge recommends in his order of reference that the order of 22nd May 1948 was ultra vires and should be set aside and that the proceedings started on the second complaint of that date be quashed.
2. The principal question is whether the order of 22nd May 1948 dismissing the complaint 'in default' is legal. Proceedings under Section 145, Criminal P. C. are of a special nature, there is nothing analogous to them in the rest of the Code. A dispute about immovable property is ordinarily to be decided by a civil Court. But on account of its giving rise to apprehension of breach of the peace, special jurisdiction is conferred upon a Magistrate to take notice of it and to proceed in a certain manner so as to preventthe peace being broken. He would have no jurisdiction over the dispute if it did not give rise to apprehension of breach of the peace. How he is to proceed is exhaustively dealt with in Ss. 145, 146 and 148. No aid is to be had from the remaining sections of the Code in the matter of procedure. Section 356 lays down the manner in which the evidence would be recorded by the Magistrate; it has nothing to do with the procedure to be followed. A Magistrate, therefore, cannot pass an order that is not contemplated by Sections 145, 146 and 148 or is against their provisions. A complaint of an offence may be dismissed in default on account of the complainant's absence but neither is an application to a Magistrate to take cognizance of a dispute under Section 145 a complaint nor can it be dismissed in default under any provision contained in Ss. 146 to 148. The Code defines a 'complaint' to mean an allegation made to a Magistrate that some person 'has committed an offence'. An application under Section 145 does not-contain an allegation that any offence is committed by the opposite party; on the other hand, it is directed towards preventing that party's committing an offence by breaking the pease. Consequently, the provision under which a complaint can be dismissed in default cannot be applied to dismiss an application under Section 145 on the ground of the applicant's absence. According to the procedure laid down in the three sections mentioned above the Magistrate is required to
'peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence if any as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before-mentioned in such possession.'
If he decides that neither party was in possession or is unable to satisfy himself as to which of them was in possession, he is empowered to attach the property until a competent Court has determined the rights of the parties thereto. Section 148 permits him to get a local inquiry made where he considers it necessary. If at any time he finds that there was no apprehension of breach of the peace, he is bound to cancel the preliminary order and stay further proceedings because the bottom is knocked out of his jurisdiction over the dispute. There is nothing else that he can do and if he attempts to do anything else it means that he goes against the provisions of the sections. The sections exhaust the orders that can be passed in all possible contingencies. An order dismissing an application under Section 145, Criminal P. C., merely on the ground of the applicant's absence is, therefore, an illegal order. If one party ia absent the Magistrate is competent to proceed ex parte against him. If on account of his absence there is no written statement filed by him and no evidence produced by him, that would not prevent the Magistrate from deciding, as required under Sub-section (4), whether any and which of the parties was in possession. Under Sub-section (4) he is required to do several acts before deciding whether any and which of the parties was in possession but it does not mean that if any of the acts is not done, he cannot proceed to decide so. Some of the acts can be done by him only if the parties did certain other acts; if they failed to do those acts, he cannot do the acts which he is required to do. Still he can proceed to decide whether any and which party was in possession. For example, if a party does not put in a written statement, he cannot read its written statement but he can still proceed to decide the question of possession. Again if a party does not produce evidence, he can still proceed to decide the question of possession. He can peruse the other party's written statement and receive its evidence and give his decision. If both parties put in written statements claiming to be in possession and one party absents itself before producing its evidence, order in favour of the other party can be passed without some evidence because the decision about possession in the event of contest, must be based on evidence and evidence alone. So long as one party is present and produces evidence there is absolutely no difficulty in the Magistrate's proceeding to decide the question of possession. The difficulty arises when both parties are absent and there is no evidence, on the question of possession. So long as there is some evidence, the Magistrate can decide the question, but he cannot decide when there is absolutely no evidence. In that event it is open to him to get a local inquiry by a subordinate Magistrate as provided in S. 148, though this course has been objected to in some authorities. In any case, it is open to him to say that in the absence of evidence he is unable to satisfy himself as to which of the parties was in possession and attach the property under Section 146. This course also has been objected to in some authorities but I consider that the objection is not sound in law. The only ground on which an application can be dismissed is that there is no longer apprehension of breach of the peace. I have already explained that the very basis of the Magistrate's jurisdiction is the apprehension of breach of the peace. If the Magistrate dismisses the application simply on account of the applicant's absence it means that he has not realised the nature of his jurisdiction or that he acted precipitately in taking cognizance of the dispute without satisfying himself that it was likely to give rise to breach of the peace. Otherwise one cannot understand the order. When the sole basis for his assumption of jurisdiction was the apprehension of breach of the peace, he cannot divest himself of the jurisdiction so long as that apprehension lasts. The applicant's or both parties' absence might have been due to disappearance of the apprehension of breach of the peace and the Magistrate might justify his order of dismissingthe application on this ground. But usually it is not justified on this ground and it has not been justified on this ground in the present instance. Moreover, it would not be proper to infer from the absence simpliciter that the apprehension has disappeared. The Magistrate must have better evidence to satisfy himself that there is no longer any apprehension of breach of the peace. A Magistrate who passes the preliminary order under Sub-section (1) with a due sense of responsibility, would know that he cannot pass an order of dismissal in default, so long as he is not satisfied that the danger of breach of the peace has receded.
3. The illegality of dismissal of an application in default can be demonstrated in another way. A plaint or a complaint can be dismissed in default but they cannot be allowed ex parte without evidence. In a regular trial or a suit there are two parties, one having the pre-deter-mined position of complainant or plaintiff and the other having the pre-determined position of accused or defendant. But the same cannot be said of proceedings under Section 145. The proceedings are commenced at the instance of one party, who is called the applicant. But once the Magistrate assumes jurisdiction, both parties stand on the same footing and neither can be said to be a complainant or plaintiff. When the names of the parties are written, some name has to be written first but that would not make that party a complainant or plaintiff. Therefore, no Order of dismissal in default can be passed.
4. Rajdeo Singh v. Emperor : AIR1948All425 lays down that an order dismissing a case under Section 145 in default is without jurisdiction and that before it is finally disposed of on merits, the preliminary order under Sub-section (1) can be cancelled only if Sub-section (5) applies. Jhanger v. Baij Nath, 14 Cri. L. J. 277 (ALL), Fateh Sher Khan v. Emperor, 17 Cri L. J. 129 (Lah.), Tara Chand v. Behari Lal, 18 Cri. L. J. 36 (Lah.) and Juthan Singh v. Ram Narain Singh, 18 cal. W. N. 700 are cases in which the Magistrate passed an order declaring one party to be in possession and prohibiting the other party from interfering with it without recording any evidence and it was set aside as illegal. Those cases are to be distinguished from the instant case in which no order in favour of either party was passed and the Magistrate simply left both the parties in the state in which they were before the proceedings were commenced. In Ram Krista Patra v. Aghore Naskar, 6 Cal. W. N. 925, Gobind Chandra v. Nibaran Chandra, 8 Cal. W. N. 642, Nojem Mirdah v. Jamalali Khalifa, 8 Cri. L.J. 27 (Cal.), C. Sidda Beddi v. D. Adigadu, 31 cri. L. J. 190 (Mad.); Kefatulla v. Feruzuddin, 5 Cal. W. N. 71 and Mahomad Nur v. Bikkan Mahton, 30 Cal 918, the Magistrate proceeding against a defaulting or absenting party passed an order without recording any evidence of the other party declaring it to be in possession and the order was held to beillegal. In the cases of Gobind Chandra; Kefatulla Chinnapareddigari and Mahomad Nur, the defaulting party did not even file a written statement in respect of its claim of possession. In Palani Goundan v. Kulandaivelu Goundan, 43 Mad. L. J. 716, Manik v. Azimuddi, 6 cal. W. N. 923 and Mt. Raquma v. Mt. Ghirai , the Magistrate dismissed the case without recording any evidence on account of the absence of the parties and his order was set aside. In Kolha Koer v. Muneswar Tewari, 34 Cal. 840, Mansar Ali v. Matiulla, 12 Cal. W. N. 896, Sheo Balak Rai v. Bhagwat Panday, 16 cal. W. N. 1052 and Bejoy Madhub v. Chandra Nath, 14 Cal. W. N. 80, the Magistrate resorted to attachment under Section 146 without recording any evidence; his order was set aside in the first three cases but was maintained in the fourth case. The order was clearly wrong in the case of Kolha Koer because the parties had filed written statements and the Magistrate had no justification without recording their evidence to say that he could not decide which of them was in possession. But in Mansar Ali's case neither party filed any written statement or produced any evidence. When the parties did not claim to be in possession and did not produce any evidence of their possession I do not know how the Magistrate could say that one was in possession and not the other. He could have made a local inquiry as contemplated by Section 148 but the provisions of that section are of an enabling, and not mandatory nature. That case was distinguished in the case of Bejoy Madhub on the ground that sufficient time was cot allowed to the parties for filing written statements. In Sheo Balak Rai's case stress was laid on the fact that the Magistrate simply ordered attachment under Section 146 without saying that he was unable to decide which party was in possession. A Magistrate has no jurisdiction to attach property under Section 146 unless he is in a position to say that he cannot decide which party was in possession. In Bengali Parida v. Banchhanidhi Panigrahi, 9 Pat. 639, attachment under Section 146 when the parties produced no evidence was upheld.
5. In none of the cases referred to above was any importance attached to the fact that the party against whom the final order was passed had filed no written statement claiming to be in possession. The first act that a party has to do when it appears before the Magistrate under Section 145 is to file a written statement claiming its possession. The question of evidence would arise only if there was a contest between the parties about possession. If only one party asserts its possession and the other party does not claim to be in possession, it would be open to the Magistrate to pass the final order in favour of the former party without recording any evidence. There would be no point in recording evidence in the absence of any contest. I, therefore, do not agreewith the view taken in cases of Gobind ChandraChakrabatti, (8 Cal. W. N. 642), C. SiddaReddi, (31 Cri. L. J. 190 Mad.); Kefatulla(5 Cal. W. N. 71) and Mahomed Nur, (30 Cal. 918).When neither party files a written statementclaiming to be in possession, again there arisesno question of recording evidence of possession.In such a case, the Magistrate can certainly notpass an order in favour of either party declaringit to be in possession, unless he gets a local inquirymade under S, 148 and it is found that that partyis in possession. He can order attachment under Section 146 on the ground that in the absence of anyclaim to possession and evidence about possession,he is unable to decide which party is in possession. If he does not get a local inquiry made, heis bound to pass an order under Section 146 becausethere is no other order that can be passed. So theproper order that should have been passed in thepresent case by the Magistrate on 22-5-1948 wasone under Section 146. The order that was actuallypassed, though illegal, is, however, less againstthe applicant's interest than an order under Section 146.An order under Section 146 would bar fresh proceedingsunder Section 14S whereas the order actually passeddoes not bar fresh proceedings. In the case of anorder under Section S46, she would be obliged to go toa civil Court whereas it is still open to her to dowhat she could do before he commenced theproceedings. She is, therefore, not at all aggrievedby the illegal order being passed and I do not feeldisposed to set it aside simply because it is illegal.Proceedings under Section 145 provide only temporaryrelief; the ultimate relief must be obtained by theparties from a civil Court. It is open to the applicant to go to civil Court at once and get adecision in her favour.
6. I do not agree with the learned Sessions Judge that the applicant was late in coming by about an hour or so and consequently the order of dismissal was ultra vires. There is no question of ultra vires at all. The Magistrate did not know at the time of dismissing the complaint that the applicant was delayed by only an hour. Nobody had informed him that the applicant would be coming within an hour. He found her absent and dismissed the application. If the dismissal was justified at that moment, it would not become improper or illegal because the applicant appeared an hour later.
7. The learned Sessions Judge remarks that itis a hard case. I do not see why it should betreated as a hard case, when the applicant'sremedy in a civil Court is open to her; she cansue for ejectment of the opposite party from thehouse. And hard cases cannot be permitted tomake bad laws
8. The reference is rejected.