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Gajraj and ors. Vs. Collector Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ1026
AppellantGajraj and ors.
RespondentCollector Singh
Excerpt:
- - rahmat ullah, 1973 cri lj 1091 (all) and sheo nath singh v, mannoo' singh yadava, 1969 all wr (hc) 817 are-no longer good law. the case of the applicants is that taking advantage of the old age and poor eye-sight of their father, khemma, collector singh fraudulently obtained a sale-deed in his favour and started laying claim to the land. desai 1969crilj13 the above three decisions cannot be regarded as good law. - 145. (1j 'whenever a district magistrate .or magistrate of the first class, is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists. ..he shall make an order in writing, stating the grounds of his bema so satisfied. provided that the district magistrate or the magistrate who has attached the subject of dispute mav.....d.s. mathur, c.j.1. the following questions have been referred to this full bench:-whether(1) the supreme court decision lays down the law that even if a plea is raised under sub-section (5) of section 145. such, a plea must be rejected once the magistrate had arrived at the conclusion under sub-section (1) of section 145 that there was an apprehension of breach of peace.(2) the division bench decisions of this court in ganga singh v. raj bahadur singh : air1958all803 and sanka-tha singh v. rahmat ullah, 1973 cri lj 1091 (all) and sheo nath singh v, mannoo' singh yadava, 1969 all wr (hc) 817 are-no longer good law.2. the material facts of the case are that the present revisionists, gajrai and his two brothers, moved an applica- . tion under section 145 of the code of criminal procedure,.....
Judgment:

D.S. Mathur, C.J.

1. The following questions have been referred to this Full Bench:-

Whether

(1) the Supreme Court decision lays down the law that even if a plea is raised under Sub-section (5) of Section 145. such, a plea must be rejected once the Magistrate had arrived at the conclusion under Sub-section (1) of Section 145 that there was an apprehension of breach of peace.

(2) The Division Bench decisions of this Court in Ganga Singh v. Raj Bahadur Singh : AIR1958All803 and Sanka-tha Singh v. Rahmat Ullah, 1973 Cri LJ 1091 (All) and Sheo Nath Singh v, MannoO' Singh Yadava, 1969 All WR (HC) 817 are-no longer good law.

2. The material facts of the case are that the present revisionists, Gajrai and his two brothers, moved an applica- . tion under Section 145 of the Code of Criminal Procedure, 1898 (to be referred hereinafter as the Code), with the allegations that they were in possession of the disputed plots Nos. 513/1, 514 and 711, situate in village Aurani, P. S. Sandi, atid that the opposite party. Collector Singh, was wrongfjilly trying to interfere with their possession and there was an apprehension of the breach of peace. After obtaining the police report,, the Magistrate passed a preliminary order under Section 145 (1) of the Code and directed attachment of the disputed plots. Both the parties filed ' their written, statements along with affidavits and documents. The case of the applicants is that taking advantage of the old age and poor eye-sight of their father, Khemma, Collector Singh fraudulently obtained a sale-deed in his favour and started laying claim to the land. He applied for mutation of his name, but his application was dismissed by the Sub-Divisional Officer, Bilgram. The applicants thus claimed to be in possession of the plots from the time of their father.

3. They filed affidavits of many witnesses, extracts pf village records, and also a copy of the order of the Sub-Divi- isional Officer in the above mutation case.

4. Collector Singh claimed title through the registered sale-deed executed by Khemma transferring the disputed plots to him. He claimed to be in continuous possession of the disputed plots from the year 1965. He also filed many-affidavits in support of his claim and a few documents including rent, receipts. In the affidavits it was further asserted that there was no apprehension of the breach of peace.

5. In spite of the assertion made by and on behalf of Collector Singh, opposite-party, that there existed no dispute likely to cause the breach of peace the Magistrate recorded no finding on. this question, proceeded with the inquiry and passed a final order as contemplated by Section 145 (6) of the Code, namely, that Collector Singh was in possession of the disputed land within two months of the preliminary order. He at the same time directed the applicants not to interfere with the possession of Collector Singh. The attached property was' released in his favour, possession to be delivered on the' expiry of the period prescribed for revision.

6. The applicants, Gajraj and others, preferred a revision before the Sessions Judge of Hardoi and, as would appear from his prder, the finding recorded by .the Magistrate was challenged on merits, and not on the ground that he had no jurisdiction to proceed with the inquiry without first recording a finding on the assertion of Collector Singh that there was no apprehension of the breach of peace. The Sessions Judge was of opinion that the present was not a fit case for interference and, therefore, dismissed the revision. Thereafter the applicants moved the present revision before the vHigh Court ^nd challenged the order of the Magistrate on three grounds; firstly, that the Magistrate did not have the territorial jurisdiction to entertain the present proceeding; secondly, that the Magistrate did not consider the evidence adduced by the applicants and, therefore, the finding on merits could not be sustained and thirdly, that the Magistrate acted without jurisdiction in relying on the affidavits not verified by him but verified by another Magistrate.

7. It, however, appears that the learned Judge, who has made the reference, permitted the applicants to raise for the first time, before the High Court a new plea that because the- Magistrate had not recorded any finding' on the plea of the opposite party that there existed no dispute likely to cause breach of the peace, he had' no jurisdiction to further proceed with the inquiry and to pass a final order under Section 145 (6) of the Code. This contention is apparently based upon the Division Bench decisions of this Court in : AIR1958All803 , 1973 Cri LJ 1091 (All) and 1969 All WR (HC) 817.

8. In Dhannoo v. Patram, 1973 AH WR (HC) 655, Chandra Prakash, J.. held that in view of the Supreme Court decision in R. H. Bhutani v. Miss Mani J.Desai : 1969CriLJ13 the above three decisions cannot be regarded as good law. The learned Single Judge hearing the present revision did not agree with the view expressed in 1973 All, WR. (HC) 655 (supra) and desired that this decision.requires reconsideration. He, therefore, referred the two questions detailed above for consideration by a larger Bench.

9. The material parts of Sections 145 and 146 of the Code are as below:-

145. (1J 'Whenever a District Magistrate ....or Magistrate of the first class, is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists....he shall make an order in writing, stating the grounds of his bema so satisfied....in such dispute to attend his Court in person or by pleader..... and to put in written statements of their respective claims as respects the fact of actual possession of the subjeoft of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.

(4) The Magistrate shall then, without reference to the merits of the claiiw of any of such parties to a right to possesses the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry ..,......... and, if possible, decide the question whether any and which of the parties was at the data of the order beforementioned in suck possession of the said suhject:

Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully ...... dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.

(6) If the Magistrate decides that one of the parties was, or should under the second proviso to Sub-section (4.) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the second proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

146 (1) 'If the Magistrate is of opinion that none of the parties was then in l such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may 'attach it, and draw up a statement of the facts of the case and forward the record of the proceedings to a Civil Court of competent jurisdiction to decide th^ question whether any and which of the parties1 was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145, and he shall direct the parties to appear before the Civil Court on a date to be fixed by him:

Provided that the District Magistrate or the Magistrate who has attached the subject of dispute mav withdraw the attachment at any time, if he is satisfied tliat there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.(1-A) On receipt of any such reference, the Civil Court shall pe.ruse the evidence on record and take such further evidence, as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the Parties, decide the question of possession so referred to it.

(1-B) The Civil Court, shall ............conclude the inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made, and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court.

10. It shall thus appear that the Magistrate can pass a preliminary order under Section 145 (1) of the Code on being satisfied that a dispute likely to cause breach of the peace exists concerning an immovable property, and thereafter has to proceed with the inquiry as contemplated by this section. The inquiry is concluded by an order under sub-section. (6) of Section 145 of the Code, or by such an order after a reference has been made to the Civil Court and the Civil Court has recorded a finding on the question of possession. The inquiry can also be concluded by staying further proceeding under Section 145 (5) on any party Interested in showing to the satisfaction f the Magistrate that no such dispute as 1 aforesaid exists or has existed. A reference to the Civil Court is made when the Magistrate is of the opinion that none of ttie parties was then in such possession, r is unable to decide as to which of them wais tben in possession, of the subject of dispute. He has then to attach the property, draw up a statement of the facts of the case and forward the record of the proceeding to the Civil Court. Even if a reference has been made to the Civil Court under Section 146 (1), the Magistrate can withdraw the attachment if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute. Further, on receipt of the finding of the Civil Court, the Magistrate has to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court.

11. It shall be noticed that in AIR 196JJ SC 1444 : (1969 Cri LJ 13) (supra) theft Lordships of the Supreme Court were not at all considering the scope and effect of Sub-section (5) of Section 145 of the Code. Therein the appellant, R. H. Bhutani, was forcibly dispossessed of the Cabin in the morning of June 11, 1966. The respondents had threatened him with dire consequences on his asking them to place back his belonging and to restore possession to him, and when he returned to the Cabin after making a report at the Police Station and demanded possession thereof, he and his friend were attacked and beaten in which his friend received injuries. A report was again made at the Police Station and it was at the intervention of the higher authorities that respondent No. 1 was arrested but released on bail, and even thereafter she (respondent No. 1) kept some person near the Cabin to prevent the appellant from recovering possession. There was thus every likelihood of a breach of the peace, had the appellant gone to the Cabin to recover possession. It was in these circumstance's that the appellant moved an application under Section 145 of the Code before the Additional Chief Presidency Magistrate. In her written statement respondent No. 1 denied that any dispute had existed on that day, or that there was any likelihood of the breach of peace. The alleged forcible dispossession was also denied. The Magistrate recorded the findings that respondent No. 1 started harassing the appellant from the beginning of June, 1966 and gave threats to forcibly dispossess him if he did not vacate; that the respondent had forcibly and wrongfully taken possession of the Cabin in the morning of June 11, 1966 and that the ' respondents had manhandled the appellant and his friend as a result of which Salim received injuries. On these findings the Magistrate held that under the second proviso to Section 145 (4), the appellant must be deemed to be in possession on the date he (Magistrate) had passed the preliminary order and by his final order passed under Sub-section (6) the Magistrate directed restoration of possession to the appellant until eviction in due course of law and prohibited the respondents from interfering' with his possession ,till then.

12. Two points were raised in the revision before the High Court; firstly, that the Magistrate had in entertaining the application and passing the said pre- > liminary order, misconceived the scope of proceedings under Section 145, and secondly, that he had no jurisdiction, to pass the said preliminary order as in. the events that had happened, there was no existing dispute likely to result in. a breach of the peace. The High Court accepted these contentions and set aside the order of the Magistrate.

13. Both these contentions were repelled by the Supreme Court holding that the High Court could not in exercise of its revisional jurisdiction, go into the question of sufficiency of material which had satisfied the Magistrate before passing the preliminary order and that the mere fact that the appellant had not taken recourse to violence, it could not be said that there did not exist an apprehension of the breach of peace.

14. Their Lordships of the Supreme Court were merely considering the validity of the preliminary order under Section 145 (1) of the Code and also whether, in the circumstances of the case, on the date of the preliminary order, there did or did not exist a likelihood of the breach of peace, and not whether under Sub-section (5) further proceedings could be stayed on the other party showing that there did not exist or had existed a dispute likely to cause a breach of the peace. Consequently the above Supreme Court decision is not directly applicable to a case where .the preliminary order has been cancelled under Sub-section (5) or the Magistrate omits to record a finding on the plea raised by the opposite party that there did not exist or never existed a dispute likely to cause a breach of the peace; and hence the decision in : 1969CriLJ13 (supra) cannot and does not directly overAile the aforementioned Division Bench decisions of this Court.

15. However, certain observations made in the Supreme Court case and also in two Full Bench decisions of this Court strongly suggest that the above mentioned Division Bench decisions of this Court do not lay down the correct law.

16. It is true that in R H. Bhu-tani's case : 1969CriLJ13 there was wrongful and forcible dispossession of the party in possession of the property, but it lays down two important principles: firstly, that the non-existence of a dispute likely to result in a breach of the peace, cannot be assumed from the fact that there has been no subsequent disturbance of law and order and secondly, that .the failure to record reasons in the preliminary order under Section 145 (1) does not vitiate the pro- ceedings, nor can it be said that in the absence of the reasons the Magistrate has no jurisdiction to take proceedings under Section 145 of the Code.

17. On the first point the Supreme Court observed as below:-

The proviso is founded on the principle that forcible and wrongful dispossession is not to be recognised under the criminal law. So that it is not possible to say that such an act of dispossession was completed before the date of the order. To sax otherwise would mean that if a party who is forcibly and wrongfully dispossessed does not in retaliation take the law into his hands, he should be at disadvantage and cannot have the benefit of Section 145.

Their Lordships further quoted with approval the following observation in Amrit-lal N. Shah v. Nageshwara Rao AIR 1947 Mad 133 : (1947) 48 Cri LJ 435:

Merely because there has been no further violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that, therefore, proceedings under Section 145 should be dropped.

18. In the Madras case the respondent (lessor) got possession . of the Talkies and began to run the show on the. basis of a notice from the District Magistrate on incorrect representation of facts. It was held:

From the records, it is clear that the petitioner was in possession till the date on which he was evicted, and it is true that they did not take up cudgels qj use violence to resist the entry fey ths respondents. But there is no doubt that in the absence of the petitioner the manager and other servants had no other go, since the notice of the Magistrate was shown to them: and since it was a notice issued on a mistake, such an eviction should be considered to be an eviction by force. It is not in all cases that actual force should be used before it could be said that the eviction is a forcible one. Mis-representation and improper threats besides these are sufficient to constitute forcible dispossession^, and there were these in this case. It was by getting the licence cancelled and by getting it issued in the name of the lessor and by having the notice issued by the Magistrate that the servants and others were made to leave.

It was further observed:

This is not a case in which matters should have to be dropped by reason of Section 145 (5). It is only if there has been a subsequent settlement or if the petitioner agreed to give up the lease-hold right and not claim to get back possession of the property, action can be taken under Section 145' (5). Merely because there has been no further violence,. it fcould not be said that there cannot be a ''breach of the peace and proceedings should be dropped.

As it was found that the petitioner 'was in possession and had been evicted only by notice obtained on incorrect representation to the Magistrate and onlv by the issue of a notice, on such incorrect recitals that the petitioner's servants 'have been made to vacate the building it will have to be considered that there was -a forcible eviction of a person entitled to 'foe in possession.

19. In other words, the non-existence of a dispute likely to cause a breach of the peace, cannot be assumed from the fact that there has been no violence in retaliation or otherwise. Further, when the Magistrate is once satisfied as to the -existence of such a dispute, a contrary -view cannot ordinarily be taken unless there has been a settlement between the parties or one of the parties gives up the claim to the property. Once both the parties lay claim to the property, violence can erupt any time. It is not unusual to find that when the parties are determined 'to press their claim to the property, they -either use force or take measures which can result in violence. The provisions ^contained in Sea 145 are to prevent a '^breach of the peace and must, therefore, 'be applied liberally and not so rigidly as 'in criminal trials.

20. Coming to the facts of the present case, the opposite party in whose favour the order under Sub-section (6} of Section 145 had eventually been passed, had not given up the claim to the property. Similarly, the applicants were claiming to toe in possession. When a serious dispute existed and continued to exist between the parties and the Magistrate was at the initial stage satisfied as to the existence of a dispute likely to cause a breach of the peace, an opinion to the contrary could not eventually be formed. By mere assertion that there was no dispute likely to cause a breach of the peace, the Magistrate could not ordinarily be satisfied that his earlier view was incorrect. There were merely affidavits against affidavits with no redeeming feature. Both the parties were still claiming to be in possession of the property. 'Therefore, in the circumstances of the case, the Magistrate could be of opinion that the opposite party had not shown to his satisfaction that there did not exist or never existed any dispute of the nature contemplated by Sub-section (1) of Section145.

21. On the second point their Lordships observed as below:

But once he is satisfied of these two conditions, the section requires him to a preliminary order under Sub-section (1) and therefore to make an nqUiry under Sub-section (6). It is not necessary' that at the time of passing the final order the apprehension of breach of peace should continue or exist:...........

The satisfaction under Sub-section (J) is of the Magistrate. The question whether on the materials before him, he ' should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the .well recognized rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub-section is clear and unambiguous that he can arrive at his satisfaction both from the police report or from other information which must include an application by the party dispossessed. The High Court in the exercise of its revisional jurisdiction would not go into the question of sufficiency of material which has satisfied the Magistrate.

The question is whether the preliminary order passed by the Magistrate was in breach of Section 145 (1), that is, in the absence of either of the two conditions precedent. One of the grounds, on which the High Court interfered was that the Magistrate failed to record in his preliminary order the reasons for his satisfaction. The section, no doubt, requires him to record reasons. The Magistrate has expressed his satisfaction on the basis of the facts set out in the application before him after he had examined the appellant on oath. That means, that those facts were prima facie sufficient and were the reasons leading to his satisfaction.

22. The above makes it clear that even though under Sub-section (l) of Section 145 it is necessary for the Magistrate to state the grounds of his being satisfied as to the existence of a dispute likely to cause a breach of the peace, the non-compliance of this provision is not by itself fatal and shall not vitiate the proceeding. It is merely an irregularity curable under Section 537 of the Code unless, of course, there has been failure of justice or the preliminary order is not justified by the material which was before the Magistrate at the time of the passing of the order. When such a view can be taken of the mandatory provisions of Section 145 (1), there is no reason why the same view or a more liberal view b not taken of Sub-section (5} of Section 145 which does not lay down that the Magistrate shall record his reasons in- writing for cancellation of the preliminary order or for not accepting plea of the opposite-party that there did not exist or never existed any dispute likely to cause a breach of the peace. It shall be noticed that Sub-section (5) nowhere lays down thai; the Magistrate must record his reasons for one View or the other. It simply pays that the Magistrate cajti cancel the preliminary order on the opposite party showing that there existe i no such dispute.

23. A reference can now be made to the two Full Bench decisions of this Court. In Kapoor Chand v. Surai prasad : AIR1933All264 stress was lay upon the fact that jurisdiction is conferred on the Magistrate by the fact that he is a Magistrate and is entitled to act in a particular way in certain circumstances. The material observations are as below:-

Now we have to consider whether the defects in the Magistrate's order deprived him of jurisdiction to proceed with the case. In other words, we have to see whether because the Magistrate did not strictly comply with the letter of the law Sn formulating his order under Section H4'5 (1), he had no jurisdiction to proceed with the case.....The jurisdiction that is conferred on a Magistrate is conferred on him by the fact that he is a Magistrate and is entitled to act in a particular way in certain circumstances....In matters which do not relate to an offence but which relate to the likelihood of offences being committed, the Code prq-vides for certain preventive measures. The (Magistrate is authorized to take those measures and jurisdiction is conferred on the Magistrate by the mere fact that he is a Magistrate and it is his duty not only to try an alleged offender but also to prevent the commission of offences...

It will be noticed that the Magistrate is to act in a certain way when he re-oeives > certain information. As soon as he receives such information he is authorized to act in a particular way. So it is the getting of the information that entitles him to act and when he is entitled rito act. he has jurisdiction to act...

Now, if we read Section 145, in the light afforded by the sections i quoted above we see that if the Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists, he is seized of jurisdiction to take action and he is empowered by the Code to act in a particular way. If this view be correct, the jurisdiction of the Magistrate arises from the fact he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate does not depend on how he proceeds. There are two things; one is the authority conferred on him to act and the other is how he is to act. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective. If this view be right, the omission on the part of the Magistrate tw follow certain directions contained in the Code although, some of these directions may be more important thai} others, cannot be, said ,to deprive him of iurisdiction.. The object of procedure is to enable the Court to do justice, but if in spite of even total disregard of the-rules of procedure, justice has been done, there would exist no necessity for setting aside the final order which is just and correct simply because the procedure-adopted was wrong.

In this case the Magistrate did not, comply with the law while passing the preliminary order under Section 145 (1), but the defect was regarded to be of procedure curable under Section 537 of the-Code.

24. The recent decision of this-Bench, which had the occasion to hear the reference made in Daya Ram Sharma. v. U. P, State, Cri. Revn. No. 252 of 1971, D/-' 23-8-1974 : (1975 Cri LJ 885) (All) (FB), leads to the same inference. The material facts of this case were that while making the reference to the Civil' Court under Section 146 (1) of the Code, the Magistrate had not given reasons why he was of the opinion that none of the parties was then in possession, or he was unable to decide as to which of thent^ was then in possession: he made no comments on the evidence of the parties, nor' did he draw up a statement of the facts of the case while forwarding the record of the proceeding to the Civil Court. This irregularity was held not to affect th# jurisdiction of the Magistrate; it was regarded more or less an error in procedure. It was held by the Full Bench thafr the defect Was such, which was curable-under Section 537 of the Code, and was not fatal unless it had occasioned a failure of justice.

25. It is true that in spite of the-reference under Section 146 (1) of the-Code, the matter remains pending before the Magistrate, but the Civil Court acquires iurisdiction on the basis of the-reference. It is the reference which confers jurisdiction on the Civil Court and? if the irregularity is not curable by Section 537, the defect in the reference would* be one which would vitiate the proceeding and disentitle the Civil Court from; recording its decision. To put it differently, in so far as the Magistrate is concerned, it is a defect in the procedure and action taken by him during the pendency of the proceeding before him; but in so far as the Civil Court is concerned, tthe defect in the order of reference is similar to the defect in the preliminary order under Section 145 (1). In the words, of the Full Bench the defect is in the-'exercise', of jurisdiction, and not the-'existence' of jurisdiction. Consequently, any irregularity committed while passing the preliminary order under Section 145 (1) or while making a- reference under Section 146 (1), is in the 'exercise' of jurisdiction* and not the 'existence' of jurisdiction. On the same reasoning any mistake committed during the proceeding at the stage of Sub-section (5) shall also be one in the 'exercise' of jurisdiction.

26. As already mentioned above, the Magistrate acquires jurisdiction to take cognizance of the proceeding when he receives information as contemplated by Section 145 of the Code, and he has the power, to deal with the case till he passes a final order as contemplated by sub-s. (6) of Section 145 with or without a reference under Section 146 (1). His jurisdiction also ends when he drops the proceeding under Sub-section (5) of Section 145. In Case he does not drop the proceeding uiider. this sub-section and continues the proceeding till the passing of the order under Sub-section (6), the action taken is within jurisdiction though there may be some irregularity in procedure.

27. A similar inference can be drawn from the two Division Bench decisions which are the subject-matter of reference. In 1973 Cri LJ 1091 (All) (supra), the Magistrate had dropped the proceeding after the finding of the Civil Court under Section 146 had been received, on being satisfied that there was no apprehension of breach of the peace. This case is thus not directly applicable to the instant case. The Division Bench had followed the earlier Division Bench decision in 1969 All WR (HC) 817 (supra). Therein it was made clear that the order contemplated by Sub-section (5) of Section 145 must be nassed either as a part of the final order or as a separate order. The observation on this point is as below:-

This necessarily means that Sub-section (5) casts a duty upon the Magistrate to decide the.question raised before him. If he comes to a decision that such a dispute exists the preliminary order will become final and he will go on to decide the Question of possession. But, if he arrives at the conclusion that no such dispute exists he shall cancel the preliminary order and stay further proceedings. Whatever his decision the Magistrate must'record it in writing together, with his reasons thereof either as a part of the final order or as a separate order.

28. When the Magistrate can record a finding on the existence or non-existence of the dispute contemplated by Section 145 at the time of the passing of the final order, it means that he has the jurisdiction to proceed with the inquiry till the stage of the final order, and when he has the jurisdiction to conclude the in-quiry.while passing a final order under Sub-section (6), it would mean that any mistake committed earlier before the passing of the final order, would be one-of procedure, and not of jurisdiction. It will be an error in the 'exercise' of jurisdiction, and not 'existence' of jurisdiction. Further, wh,en the mistake committed is one of procedure or in the exercise-of jurisdiction, the defect would be* curable under Section 537 of the Code**-unless there has occasioned a failure of* justice.

29. In the end, a reference may be made to two other decisions which-support the view that mere assertion of party is not sufficient to hold 'that no dispute likely to cause a breach of the peace-exists and for recording such a finding there must be circumstances to justify such an inference. In : AIR1958All80 , Desai, J., as he then was, observed:

It must be pointed out that a dispute likely to cause a breach of the peace cannot be said to cease to exist merely because the Magistrate has attached the-subject of dispute; it can be said to cease to exist only if, after the release of the subject of the dispute from attachment, there will be no rival claims, as for instance when the matter has been settled privetely. If the dispute will revive as soon as the subject of dispute is released' from attachment it is not a case of cessation of the dispute and if with the revival of the dispute an apprehension of, a-breach of the peace also will revive-the Magistrate cannot drop the proceedings.

30. In Khudiram Mandal v. Jiten-dra Nath : AIR1952Cal713 mere assertion by both the parties in their written statements that there was no contingency of a breach of the-peace saving nothing about the intentions-of the other party, was held not to be-sufficient for cancellation of the proceeding under Section 145 (5). Sinha. J. further observed:

The question of being satisfied as to* the likelihood of a breach of the peace occurring, is an element to be considered for an order under Section 145 (1). but once the proceedings have been validly initiated, it is not one of the essential ingredients in passing the final order under Section 145 (6). No doubt, the jurisdiction; being a preventive one, the moment a-Magistrate is satisfied that there is no longer a.possible apprehension of a breach of the peace he should bring the proceedings to an end. But that does not mean-that he should at every stage go on recording his satisfaction as to the existence or otherwise of such art apprehension. If he chooses to go, on, it must be1 presumed that he is not satisfied that the-apprehension has ceased.

31. To sum up. the Supreme Court-decision settles the controversy as to that manner in which the existence, or non-existence of a dispute likely to cause a breach of the peace has to be judged. As-.sertions of the parties on this question are .not very material; proper inference, can be drawn mainly from the circumstances, of the case. For example, where a party has been wrongfully and forcibly dispossessed, there shall be a presumption of the existence of a dispute likely to cause a breach of the _. peace' even though the party dispossessed has not acted in retaliation, or has not resorted to violence. Where there has been ifio forcible , dispossession, an inference shall have to be drawn from the intentions of the parties and the circumstances of the case, and not simply f/om the assertion of a party that there was no apprehension of breach of the peace. Similarly, assertion by a party that there is no apprehension of breach .-of the peace from -his side, shall not be sufficient. Proceeding under Section 145 is by way of a preventive measure to prevent any violence resulting from a dispute in respect of an immovable property. Consequently, once the Magistrate is satisfied from a police report or other information, he cannot change his opinion simply because the opposite party is denying the existence of such a dispute. The opposite party will invariably raise such a plea so that the proceedings may be dropped and -he may be able to accomplish his aim to secure possession over the property. This -view can be adopted with greater force where after the ' passing of the prelimi-.nary order the Magistrate had directed attachment of the property. Once the property has been, attached and given in the custody of a third person, no occasion would arise for the assertion of rights, and when there' shall be ,no occasion for the parties to lay claim to possession there will invariably be no dispute or act of violence. Disputes will revive after,the attachment is vacated. Written statements filed by the parties, which is invariably after attachment of the property, will have to be considered in this light. Hence mere assertion of a party in his written statement that there did not exist or never existed a dispute likely to cause a breach of the peace, shall be highly insufficient to accept the plea and to cancel the preliminary order under Sub-section (5) of Section 145. Broadly speaking, it can 'be said that the preliminary order can be cancelled under Sub-section (5) only when there has been some settlement between the parties or the opposite party makes it clear that he has no claim, nor has the intention to assert claim to the posses-. sion of the Property, Where both. the rival parties assert that no' apprehension of breach of the peace can he expected .from their side but do not give up their claims to the property, that also shall be no ground tor cancelling the preliminary order, What shall have to be seen is: Do the parties have or any of the parties has the intention to take the law into their or his hands

32. When the preliminary order can be cancelled under Sub-section (5) in special circumstances only, and not merely because an assertion as to the non-existence of such dispute has been made in the written statement and the affidavits, omission to pass an order rejecting the plea shall be a very minor irregularity.

33. As shall be evident from the Supreme Court decision referred to above and the Full Bench decision of 1933, a Magistrate acquires jurisdiction to take proceeding under^ Section 145, Cr.P.C. ' because he is a competent Magistrate and has received information as to the existence of a dispute likely to cause a breach of the peace. When the competency of the Magistrate depends upon his being a Magistrate of the first class or a Sub-Divisional Magistrate or a District Magistrate, his subsequent action- would be in exercise of the jurisdiction which he already possesses. The Magistrate having the jurisdiction has jurisdiction till the conclusion of the inquiry. An inquiry under Section 145 is concluded either by the cancellation of the preliminary order under Sub-section (5) or by the passing of a final order under Sub-section (6) with or 'without a reference to the Civil Court under Section 146. When the jurisdiction of the Magistrate extends upto the passing of the final order, any mistake committed by him in following the prescribed procedure, would be in the exercise of jurisdiction curable under Section 537 of the Code. Even on the application of the rule laid down in the recent Full Bench decision decided by us, irregularity in not passing an order on the plea of the opposite party would be an irregularity curable under Section 537 of the Code. It is true .that the omission to give reasons while making a reference to the Civil Court under Section 146 (1) is akin to the omission while passing the preliminary order under Section 145 (U, yet the Civil Court is conferred jurisdiction only when a proper reference is made. Hence an omission of the above nature is not one which would deprive the Civil Court of the jurisdiction. On the application of this rule also the Magistrate would not be deprived of the jurisdiction when he fails to pass an order on the plea of the opposite paity that there did not exist, nor ever existed a dispute likely to cause a breach of the peace.

34. In all these cases, the' defect would be a procedural one in the exercise of jurisdiction and the final order passed by the Magistrate under Sub-section (6) of Section 145 can be quashed only when (prejudice was caused to the aggrieved party. Ordinarily, prejudice can be said to have been caused to the party only when there exists material qn record to show that there did not exist or never existed a dispute as contemplated by Section 145. For recording a finding on this point we shall have to consider the material on record including the conduct of the parties.

35. I would, therefore, answer tha Iwo questions as below;-

(1) The Supreme Court decision in : 1969CriLJ13 does not lay down the law that even if a plea is raised under Sub-section (5) of Section 145 of the Code, such a plea must be rejected once the Magistrate had arrived at the conclusion under Sub-section (1) of Section 145 that there was an apprehension of a breach of the peace.

(2) Where the Magistrate does not record a finding on the plea raised by arty oarty that there did not exist or never existed a dispute likely to cause a breach of the peace, and instead proceeds with the inquiry and passes a final order under Sub-section (61 of Section 145 of the Code of Criminal Procedure, there is no defect in the competence of the Magistrate to pass such an order; the defect is merely in the exefcise of jurisdiction with the result that the proceeding shall not be vitiated unless the omission has occasioned a failure of justice, that is, on the basis of the material on record it can be said that no dispute likely to cause a breach of the peace existed or if it existed has ceased to exist. The defect in the exercise of jurisdiction would be curable under Section 537 of the Code. In my opinion, therefore to the extent the Division Bench decisions in 1973 Cri LJ 1091 (All) and 1969 All WR (HQ 817 lay down the law to the contrary, they are no longer good law.

K. B. Srivastava, J.

36. I have had the advantage of reading the judgment prepared by my Lord the Chief Justice and though I agree with him in the conclusion arrived at with regard to the answer to question No. 1; in view of the importance of the question, and the effect which our decision, is likely to have, I would take the liberty of stating my own reasons also. With regard to Ms answer to question No. 2 however, I 'have found myself unable to see eye to eye with him, and that also compels this separate judgment of my own.

37. The jurisdiction of a Magistrate to initiate proceedings under sub-.-section (1) of Section 145 arises when he is satisfied from a police report or other information that - (i) there is a dispute concerning any land or water or the boundaries thereof and (ii) such a dispute is likely to cause a breach of the peace.

38. The preservation of the public peace is one of the foremost duties of any modern State. The principle on which Section 145 is founded is that, whether a person has the best or the worst claim, he should not take the law into his own hands and disturb the public peace, in respect of a dispute relating to land etc. The scope of Magistrate's jurisdiction is avowedly limited to action in order to avert breaches of the public peace. If there is a disoute regarding land etc, .but there is no likelihood of a breach of the peace on that account,'the Magistrate cannot assume jurisdiction under Sub-section (1) for the obvious reason that the dispute alone is not enough to give jurisdiction. In other wprds, if there is mere dispute, and no involvement of a breach-of the peace, the matter would be purely civil, and a Magistrate cannot assume jurisdiction by clear transgression on the jurisdiction of another competent Court. The cardinal and determining factor thus is likelihood of a breach of the peace.

39. It is manifest from what I have stated that a preliminary order can be passed only on the simultaneous existence of two facts, namely, the existence of a dispute concerning land etc., and the magnitude and potentiality of that dispute being such that heads and limbs are likely to be broken, unless the Magistrate steps In to avert it. His satisfaction that these two facts exist is the condition precedent for the passing of the preliminary order.

40. The question that arises is whether this satisfaction is final till a proceedihg lasts or it can be dislodged at a subsequent stage during the pendency of that proceeding. I am of the view that it is final, unless it is challenged under Sub-section (5) and revoked. Once the Magistrate is satisfied at the time of the preliminary order that there is an apprehension that the peace will be broken, it is unnecessary that he should record a finding to that effect again when passing the final order. See Ganga Ram v. Murad Shah (1923) 24 Cri LJ 613 (Lah), Kamal Kuttv v. Udavavarma Raia (1912) 13 Cri LJ 753: (1912) ILR 35 Mad 275): Jiba v. Chandu Lai Amba Lai AIR 1926 Bom 91 ((1926) 27 Cri LJ 661); Gurditta v. Taja. AIR 1939 Lah 108 : ((1939) 40 Cri LJ 519); Hari Ram v. Banwari Lai AIR 1967 Puni 378 : (1967 Cri LJ 1051) and Amrit-lal N. Shah v. Nageswara Rao AIR 1947 Mad 133 : (48 Cri LJ 435), The above cases lay down that the Magistrate's satisfaction under Sub-section (1) has not to be reiterated again and again, from time to time and from stage to stage, and consequently he need not re-affirm it at the time of the final order. These cases however, do not lay down that the satisfaction initially formed cannot be revoked, when challenged. The ratio is that It would be final unless it ts challenged and cancelled. Any other conclusion will be contrary to the specific provisions of subsection (5). I am fortified in. this view of mine by Ramdatt v. State of U.P., 1967 All WR (HC) 144; Velur Devasthanam v. A. Sambandamurthi : AIR1952Mad531 ; Ganga Singh v. Rai Bahadur Singh : AIR1958All803 ; Samjid Ali v. Matasin AH (1962) 1 Cri LJ 271 (Assam); Jian v. Su-dhanshu Kumar : AIR1953All540 : Raja Ram v. Mata Prasad, 1968 All WR (HC) 247; Sheo Nath Singh v. Mannoo Singh, 1969 All WR (HC) 817 and Sankatha Singh v. Rahmat-ullah, 1973 Cri LJ 1091 (All). There is only one decision, to my knowledge, which has taken a different view. In Abdul Rauf v. Jttohd. Shaft : AIR1956All337 , V. D. Bhargava. J., took the view that once a Magistrate passes the preliminary order after his initial satisfaction, he cannot, at a subsequent stage, record a contrary finding because there is h6 provision either in. Section 145 or in th Code of Criminal Procedure for a reconsideration of the question whether a dispute is or is not likely to cause a breach of the peace. He took the further view that once the preliminary order has been passed, a Magistrate cannot be divested of his jurisdiction and his subsequent duty is only to give the decision of the question of possession as a prelude to the passing of the final order. With all respect to the learned Judge, I must eay that he has not laid down good law. There is clear provision in the section itself which enables a Magistrate to divest himself of the jurisdiction and presumably the provisions of Sub-section (5) were pot brought to his Lordship's notice.

41. In 1973 All WR (HC) 655, Chandra Prakash, J., has observed:

My attention..........., was .,.......... drawn to Division Bench rulings reported in : AIR1958All803 . These rulings no doubt contain some observations which permit a S. D. M.- to drjop the proceedings under Section. 145...........'9 on the ground that, the dispute involving a breach of the peace has cea,sed; to exist subsequently but this law in view of the ruling of the Supreme Court ............ cannot be regarded as good law.The S. D. MJt therefore, erred in dropping the proceedings ...

The reference in this passage is to the decision of the Supreme Court in 1969 AH WB (HC) 59 : (1969 Cri LJ 13) (SC). That decision concerns the interpretation .of sub-sections (1) and (4) of Section 145. No occasion arose for their Lordships to consider the scope and ambit of Sub-section (5). It cannot, therefore, be urged that their Lordships of the Supreme Court have, whether expressly or impliedly. laid.down that the satisfaction of the Magistrate at the time of the.preliminary order is final and will endure till the proceeding lasts. In my humble opinion, the observation of Chandra Prakash, J., that the Supreme Court 'has considered the entire section' is an inference which doea not flow from the decision in R. H. Bhu~ tani's case : 1969CriLJ13 and consequently, his view based on this inference that the decisions of the three Division Benches of this Court are no longer good law, is the result of a misreading of that judgment.

42. At the time at which a Magistrate assumes jurisdiction under Sub-section (1) he has either information laid of before him by the petitioner in the proceedings by means of an application, with or without a supporting affidavit,. or there is a police report pointing to alikelihood of a breach of the peace on account of a dispute concerning land etc., or there is some other information, may * be, personal information of the' Magistrate, on the basis of which he forms his opinion and assumes jurisdiction. Any of these three sources of information may be unfounded in fact. His satisfaction at that stage is ex parte, either in the absence of both the contesting parties, in the case of a satisfaction founded! on a police report or on his own information, or it is ex parte, at least, as against the rival party, in case the satisfaction has been arrived at on the motion, of the petitioner. His satisfaction at this initial stage is, therefore, tentative, Ok* proof of the contrary facts, the very foundation for assumption of jurisdiction will slip away. , That appears to be the reason why Parliament, in its wisdom, enacted Sub-section (5). This sub-section starts with the words 'nothing in this section shall preclude' and this non ob-stante clause clearly overrides the provisions contained in Sub-section (1) in so far as the question of satisfaction is con-cerned. The sub-section enables any party so required to attend, or any other person interested, to show that 'no sucb dispute as aforesaid exists or has existed'. The words 'no such dispute as aforesaid', in Sub-section (5), clearly refer back to the words 'a dispute likely to cause a breach of t,he peace exists concerning any land or water or the boundaries thereof', as occurring in Sub-section (1). The two* sub-sections have got to be read together and not in isolation. Sub-section (5) fur-ther enjoins that once any party required to attend or any other person interested is able to show that no such dispute exists or has existed, 'the Magistrate shall! cancel his said order, and all further prq-ceedings thereon shall be stayed'; the cancellation and stay thus become mandatory, one must attach proper weight ten the word 'shall' which, in the context in which it has been, used, denotes that it is .peremptory in nature. .Again Sub-section (5) ,says that 'subject to such cancellation, the order of the Magistrate under sup-seetion (1) shall be final'. The statute itself thus provides that the preliminary order is a provisional order, a temporary order, a tentative order and is subiect to the peremptory force of Sub-section (5) that is to say, once the order is cancelled, it will not and cannot be final. No other conclusion is possible on the basis of the language used in Sub-section (5). To say, then, that a preliminary order is sacrosanct and unalterable, will be doing violence to Sub-section (5), as if, it does not exist on the statute book. The words 'exist or has existed' are also significant. 'The word 'exists' refers to a stage subsequent to the passing of the preliminary .order, while the words 'has existed' have obvious reference to the time at which the preliminary order was passed, or within two months next before it. It is thus open under the statute to any party to the dispute or to any other person interested, to ask for the cancellation of the preliminary order on proof of the fact that no such dispute exists or has existed. Chandra Prakash, J., in my humble opinion, does not lav down correct law when he observes that the effect of the Supreme 'Court decision is that once the Magistrate is satisfied at the time of the passing of 'the preliminary order that there was a likelihood of a breach of the peace, that matter cannot be re-opened.'

43. The next question is as to whether the law laid down in the three Division Bench cases, still holds the field or lias become obsolete.

44. There is a string of decisions about the scope of Sub-section (5). In Sam.iid Ali's case (1962) 1 Cri LJ 271 (Assam) (supra) the Assam High Court has taken -the view that when one of the parties 'tries to show that there is no likelihood of a breach of the peace, the Magistrate , has got to apply his mind to the contention and examine it in the presence of both the parties. In Jian's case : AIR1953All540 (supra) this High Court held that it is not necessary for the Magistrate to record a finding about the continued existence of any dispute likely to cause a breach of the peace at the time of the final order; however, that will be necessary if any party is able to show that no such dispute as aforesaid existed In Raia Ram's case, 1968 All WR (HC)' 247 (supra) this Court held that if and when a plea under sub-s. (5) is raised, it becomes incumbent upon the Magistrate to make an inquiry, to consider the evidence, and to record a positive finding that there was or there was no apprehension of breach of the peace; and since no such finding was recorded, the entire.proceeding was vitiated by that illegality inasmuch as the ex parte finding is not enough to give him jurisdiction to proceed further in the matter. It was also held that inquiry about possession is required to be undertaken only if on an inquiry under Sub-section (5), the Magistrate comes to the conclusion that there was apprehension of breach of the peace. In Sheo Nath Singh's case, 1969 All WR (HC) 817 (supra) a Division Bench of this Court has held that the raising of a question under sub-s. (5) amounts to the raising of a jurisdictiomal question and the Magistrate has to examine the material placed before him and arrive at a conclusion, one way or the other; because his jurisdiction to proceed further depends upon the decision of that question; and whatever his decision, he must record it in writing together with his reasons therefor because neither on principle nor on authority can the view be justified that the Magistrate need not record Ms decision in writing on the challenge to the existence of the dispute and that the continued existence of the dispute should be presumed from the fact that the Magistrate went on to decide the question of possession; and indeed, such an ordec or decision cannot be left to be inferred or presumed from the subsequent conduct of the Magistrate as such an order' or decision is subject to revision by higher Courts and they are entitled t0 know the reasons for passing or not passing an order under Sub-section (5). In Sankatha Singh's case. 1973 Cri LJ 1091 (All) (supraK a challenge under sub-s. (5) was made butf was left undecided and a reference under Section 146 (1) was made to the Civil Court, and after the receipt of the finding of the Civil Court the challenge was reiterated and the Magistrate, after accept-, ing it, dropped the proceedings, and it was held by the Division Bench that when the challenge was reiterated after the receipt of the finding, the Magistrate was bdund to apply his mind and record a finding, one way or the other. The above is the consistent trend of decisions. 45. Now, how can it be shown that a dispute likely to cause a breach of the peace does not exist or has never existed. Like all questions of fact, it can. only be done by adducing evidence. If there is only an allegation in the written statement, it will remain an allegation, in the absence of proof, and a Magistrate can ignore it. Where, however, the plea is supported by evidence, ,a decision has got to be given. It should be remember-, ed that the power to proceed further under sub-sections (4) and (6) depends upon the decision of that question. If a , Magistrate finds that a breach of the peace existed or exists, he has to resort to subsection (4) and pass a final ordar with in Sub-section (6). If, however, he comes to a conclusion that a likelihood of a breach of the peace never existed, or at any rate, does not exist in praesenti, the statute says that in that event, he must cancel his preliminary order and stay the proceedings. If he does not act at all, even though there is evidence before him, he in. my opinion, refuses to exercise his jurisdiction which requires him to decide this matter. Sub-section (5) uses the words 'showing that no such dispute as aforesaid exists or has existed.' Now what is the meaning of the word 'showing'? In Volume 80, page 1272* Corpus Juris Se-cundum, the word 'show' has, amongst, other meanings 'to make apparent or clear by evidence, testimony, or reasoning; to prove; to demonstrate; to manifest: to evidence; to indicate, to reasonably satisfy'. The same meaning has been assigned in Webster's New International Dictionary of the English Language, Second Edition. In Shorter Oxford Dictionary, Volume II, 1933 Edition, the meaning assigned is 'to make known by statement or argument. To setforth, allege, (in a legal document). To state, allege, plead. To prove, demonstrate (fact, statement) by argument, reasoning, allegation of..........' In Murray's A New English Dictionary on Historical Principles, Volume VIII, 1914 .Edition, it means 'to prove, demonstrate (a fact, statement) bv argument, reasoning, allegation or evidence...' The mere existence on the record of evidence to show a fact; will be of no avail, unless there is a person to apply his mind to that evidence and give a finding. When a challenge is made to a Magistrate's jurisdiction to proceed further, and when it is sought to be supported by evidence, that challenge has to be scrutinized and either accepted or thrown out. This could be done only by-a decision and not by keeping silent. The fact that there is no decision may be due to several reasons - want of knowledge or appreciation of the law contained in Sub-section (5): inadvertent or accidental omission to decide the matter: deliberate refusal; waiver on the part of the party raising the plea and adducing the evidence; settlement between the parties; and the like. If the Magistrate does not write anything on . the record, it cannot be taken for granted that the matter was waived, because in that case he should mention in a separate order, that the question' does not require any decision because of waiver. Merely because there is no decision, it cannot be presumed that there was a waiver or that the Magistrate Was not satisfied with the evidence. A Superior Court should not be kept guessing in the matter because all sorts of presumptions can be drawn in the absence of the facts and it cannot be taken or presumed that there was no decision because the breach of the peace still continued to exist. The .Magistrate may as well have shirked to perform his duty. The matter affects the jurisdiction to proceed and a definitive and conclusive finding should be given in writing and though the order may not be a detailed one, it should give sufficient inkling of the thinking on the part of the Magistrate, A judicial order should be a sneaking order, Magistrates do not realize their responsibility and bv-pass salutary provisions of the statute., a practice which must be put a stop to.

46. My Lord the Chief Justice has remarked that certain observations made by the Supreme Court in R. H. Bhutani's case : 1969CriLJ13 i(supra) and in two Full Bench decisions of this Court in Kapoor Chand v. Surai Pd. : AIR1933All264 and Daya Ram Sharma v. U, P. State, Cri. Revn. No. 252 of 1971, D/- 22-2-1974 (All) : (1975 Cri LJ 885) (AH) (FB) strongly suggest that the three Division Bench decisions of this Court do not lay down the correct law. With all respects,. I am constrained to disagree and I must,, therefore, setforth my reasons for the disagreement.

47. In R. H. Bhutani's case : 1969CriLJ13 (supra) his, averment was that the licence in respect, of the cabin had been extended by Miss; Mani in his favour by another ll months on May 10, 1966. However, on June 11, 1966 Miss Mani broke open the staple of the cabin, removed the door from,its hinges, removed all his belongings lying int the cabin and dumped them in the passage outside and handed over the cabin to new licensees, and when he returned to the-cabin and demanded possession, Miss Mani and the new licensees threatened him with dire consequences. He went to the police station and lodged a first information report. Thereafter, he and his friend-Salim returned to the cabin and demanded restoration of possession and thereupon. Miss Mani and the new licensees attafck-ed them, during the course of which, Salim received injuries. Both of them, then returned to the police station, and lodged a fresh first information report albout the assault and Salim got himself medically examined. The police took no-action but later under the directions of * higher authorities, it recorded a case of assault against Miss Mani and arrested her. In spite of this, on her release on bail, she kept some oersons near the cabin to prevent him from recovering possession. It is in these circumstances, that he initiated the proceedings under Section 145 alleging that the dispute-about the cabin was likely to cause & breach of the peace. Miss Mani filed a> written statement in which she denied^ the fact of the renewal of the licence on May 10, she also denied the first incident of June 11, and the incident of assault also on that date, and asserted that Bhutani , had himself vacated the cabin. She thus denied that any dispute likely to cause a * breach of the peace existed on June 11 or there was any likelihood of- a breach of 'the peace on the date of the preliminary order. The new licencees also filed written statements but took no further part in the proceedings as in the meantime they had vacated the cabin. The main controversy thus'was whether R. H. Bhutani was in actual possession on June 11 and whether he was forcibly and wrongfully dispossessed or whether he had voluntarily vacated the cabin. The Magistrate held -that the dispossession was forcible and wrongful on June 11 and since it had taken place within two months next before the date of the preliminary order (which was passed on June 20), he ordered the restoration of possession to Bhutani. In the revision before the HJgh Court, Miss Desai raised two contentions: (1) That the Magistrate, in entertaining the application and passing the preliminary order, had miconceived the scope of proceedings under Section 145 , and (21 That he had no jurisdiction ' to pass the preliminary order as in the events that had happened there was no existing dispute likely to result in a breach of the peace. The High Court accepted these contentions on the following grounds:

(a) Section 145 can be invoked when there is an existing dispute regarding possession of land etc. on the date of the preliminary order and that dispute is likely to cause a breach of, the peace.

(b) The Magistrate had not recorded the reasons for his satisfaction on these two facts, in his preliminary order.

(c) The Magistrate had not called for a police report tor his satisfaction before making the preliminary order.

(d) The likelihood of a breach of the peace, assuming that it existed on June 11, 1966 could not be taken to have been continuous so as to exist even on June 20, 1966 when the preliminary order was passed, and

(e) Since the new lessees had been let into possession on June 11, 1966 and had been in possession for nearly a vear when the final order was passed on June 22, 1967, therefore, it would affect their vested rights and this aspect and the as- 'Z pect that there was prosecution under Section 341 of the Indian Penal Code for the criminal act of June U. 1966, should have been taken into consideration be-late the passing of the final order. It is iri the above back ground that the _ High Coui'|tOOk the yiew that the Magistrate had mlscfl&itjfeivsd; the scope of Section 145 and had assumed jurisdiction when he had no such jurisdiction. On these facts, and on this reasoning of the HighVt Court, their Lordships of the Supreme? Court laid down the following propositions of law:-

(1) The satisfaction under sub-section.' (I) is of the Magistrate, The question., whether on the materials before him, he should initiate proceedings or not, is therefore in his discretion which, nc doubt, has to be exercised in accordance-with the well-recognized- rules of law in, that behalf. No hard, and fast rule can,. therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub-section is clear and unambiguous that he could arrive at. his satisfaction both from the police report or 'from other information' which* must include an application by the party dispossessed. The High Court, in the-1 exercise of its revisional jurisdiction,, would not go into the question of sufficiency of material which has satisfied the*. Magistrate.

(2) S;ection 145 (1), no doubt, requires1, the Magistrate to record reasons for his satisfaction. The Magistrate has expressed his satisfaction on the basis of the-facts set out in the application before hirre. and after he had examined B. H, Bhutanii on oath. That means that those facts-were prima facie sufficient and were the-reasons leading to his satisfaction.

(3) The observation of the High Court, that the Magistrate ought to have obtained a police report on the allegations before he passed the preliminary order, 'is-not warranted by the clear language of the section which permits the Magistrate to initiate proceedings either on a police report or 'on other information.'

(4) The observation of the High Court that assuming that R. H. Bhutani was forcibly and wrongfully dispossessed, and Salim was assaulted on June 11 and the said dispossession was completed, and a complaint of assault was lodged and the police had already taken action before the preliminary order was passed on June 20, and consequently there was no longer any dispute on June 20, likely to lead to a breach of the peace, was unfounded in law -because the High Count did not , take into consideration the impact of the second proviso to Sub-section (41 which was introduced precisely to meet such cases. The Supreme Court observed that this sub-section enables the Magistrate to treat the party ousted from possession to be still in possession on the date of the preliminary order provided the dispossession had taken place within two months' next before it. Their Lordships further observed that 'the proviso is founded on the principle that forcible and wrongful dispossession is not to be recognized under the criminal law. So that it is not possible to say that, such an act of dispossession was completed before the date of the .order.'

(5) It was to emphasize the point laid down at No. 4 that their Lordships referred to the case of Amritlal N. Shah AIR 1947 Mad 133 :(1947-48 Cri LJ 435) (supra) and observed that it was held in that case that merely because there has-been no further violence after one of the parties had wrongfully and forcibly dispossessed the other, it cannot be said^.that there cannot be a breach of the peace and that proceedings under Section 145 should be dropped. Their Lordships observed that' 'It is thus fairly clear that the fact that dispossession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under Section 145 and give directions permissible under Sub-section (6).

48. A critical study of Bhutani's case : 1969CriLJ13 {sup'ra) will show that Bhutani had alleged forcible and wrongful dispossession on June 11, threat of dire consequences on . that date, an assault also on thatv date,'two approaches to the police station to seek redress, recording of two first information reports and posting of men near the cabin. This bundle of facts was placed before the Magistrate. In his preliminary order, the Magistrate made a reference to Bhutani's application containing the said facts and also to his evidence recorded by him, as the ground of his satisfaction. The High Court also proceeded on the assumption that the incidents of June 11. 1966 were correct and there was forcible and wrongful dispossession on that date. It is on these materials that their Lordships of the Supreme Court observed that satisfaction under Section 145 (1) is the satisfaction of the Magistrate: the question of sufficiency of material for his satisfaction is in his discretion; such satisfaction can be based on a police report or. other information: the facts mentioned in Bhutani's application and brought out in his evidence 'were prima facie sufficient and were the reasons leading to his satisfaction,' and the High Court should not interfere with the question of sufficiency of material which had satisfied the, Magistrate. The Supreme Court has not held that the Magistrate need not give reasons for his satisfaction: and indeed, what it has held is that if the preliminary order refers to the application and to the evidence, there will be deemed to be the reason.

49. After having proceeded on the . assumption that likelihood of a breach of the peace had existed on June 11, the High Court dealt with Miss Mani's contention whether the likelihood which was real on June ll, had ceased to exist between that date and June 20, when the preliminary order wa? passed. I may add that Miss Mahi had led no evidence to show that the likelihood had ceased to exist subsequent to June 11. It is in this context that their Lordships referred to the decision in the case of Amritlal N. Shah AIR 1947 Mad 133 : (1947) 48 Cri LJ 435 (Mad) (supra) that fresh violence is not necessary as a foundation for the preliminary order because forcible and wrongful dispossession, if within two months next before the date of the preliminary order, will be forcible and wrongful possessioa on the date of the preliminary order also; or else, the second proviso to Sub-section (4) will become meaningless.

50. The facts in Amritlal's case AIR' 1947 Mad 133: (1947) 48 Cri LJ 435 (Mad) (supra) were that Amritlal had taken on lease Amrit Talkies from Nageswara Rao and was in possession. Nageswara Rao made a representation to District Magistrate that Amritlal was entitled to take the licence in his (Nageswara Rao's) name and on the basis of this representation (which turned out to be fraudulent) he obtained the licence in his own name and dispossessed the Manager of Amritlal and started running .the shows himself. Amritlal instituted proceedings under Section 145 and a preliminary order was passed. The Magistrate gave a finding that Amritlal had been in possession and had been forcibly and wrongfully dispossessed but taking the view that since there was no subsequent actual breach of the peace and the parties were peaceful, no action need be taken, ordered the proceedings to stand dropped under subsection (5). Thus, forcible and wrongful dispossession within two months next before the date of the preliminary order was established. Amritlal, however^ did not resort to violence to take back possession and remained peaceful. The argument raised in suuport of the Magistrate's view was that likelihood had ceased to exist, and the Ipgh Cpurt observed that if that argument was to be accepted, it would mean that law abiding citizens who prefer to leave the matter tq be decided by the Court instead of taking the law into their own hands, are not to have the benefit of an order under Section 145 if ' they are peaceful. The High Court further observed that it was not a case in which the matter should have been dropped under Sub-section (5) and it is only if there had been a subsequent settlement or if Arnritlal had agreed to give up the lease-hold rights and not to claim back possession of the property, that action i could be taken under Sub-section (5). The law laid down was in the following terms:-.

Merely because there has been no further violence, it could not be said thaU there cannot be a breach of the peace and proceeding should be dropped. As it was found that the petitioner was in possession and had been evicted only by notice obtained on incorrect representation to the Magistrate and only upon issue of the ;notice on such incorrect recitals that the petitioners servants have been made to vacate the buildings, it will have to be considered that there was a forcible eviction of a person entitled to be in possession.

51. It will be seen from the facts of that case that neither party had raised the plea that likelihood of a breach oE the peace had tiever existed in the past or did not exist subsequently, and no party fiad led evidence in support of any such non-existing plea. The Magistrate had jsuo motu dropped the proceedings on the ground that there was no subsequent actual breach of the peace, oblivious of the law that continued likelihood is not (necessary for the passing of the final order. The Madras High Court does not hold that proceedings cannot be dropped even if the plea is established, nor does it lay down that a positive finding would aiot be necessary or reasons need not be fliven for such a finding. Their Lordships -of the Supreme Court referred to the decision merely to emphasise the fact that fresh violence is not necessary for the passing of the final order.

52. In the result; under Sub-section (5). it is open to a party to show that no dispute in respect of land etc., likely to cause a breach of the peace has ever existed in the past, that is to say at the tiipe of the passing of the preliminary order or within two months next before it. or if it had existed subsequent to times, at any rate, it does not exist subsequent to the date of the preliminary order. In either case, the law requires the Magistrate to decide this matter on the basis of the,evidence before him In a case of mere assertion, without -evidence to support it, cessation of likelihood cannot be presumed from the mere fact that there has been no fresh outbreak of violence or from the fact that 'the parties had been peaceful. If the parties do no challenge the existence of a breach of the peace on the date of the preliminary order or within two months next before it, and after admitting that, make an averment that subsequent to that date, it has ceased, the cessation will not be presumed, and something else will have to be established: but the case will 'be entirely different where the challenge is to the existence of such a dispute on 'the date of the preliminary order itself or within two months anterior to it. The observations of their Lordships of the Supreme Court have to be considered in this 1975 Cri. L. J./68 VI light. The same applies to the decision in the case of Amritlal AIR 1947 Mad 133 : (1947) 48 Cri LJ 435). No evidence was. led in Bhutani's case : 1969CriLJ13 and the contention was based merely on the absence of violence between June 11 and June 20, and in Amritlal's case AIR 1947 Mad 133 : ( (1947) 48 Cri LJ 435) (supra) after the date of the preliminary order.

53, It now remains to consider the effect of the other cases cited by My Lord the Chief Justice. In Kapoor Chand's case : AIR1933All264 the Magistrate had recorded the statement of the petitioner Surai Pra-sad on oath and had also called for and had before him a police report, and on their basis, felt satisfied that 'there appears to be some basis for this complaint to judge from the police report'. At this stage the case was transferred to the Court of another Magistrate who inspected the record and ordered notice to be issued. A notice was accordingly issued incorporating the fact that there was 'a serious dispute between the parties' regarding the house and reauiring the party to appear in Court and file his reply. The Magistrate then recorded evidence and passed the final order. The point raised before the Full Bench was that the Magistrate had not expressly stated that he was satisfied that there was a likelihood of a breach of the peace nor had he mentioned specifically the grounds on which he was so satisfied. The Full Bench observed that there could be no doubt that the Magistrate had not strictly complied with the law but nevertheless repelled this contention on the ground, inter alia, that the Magistrate had perused the record which included the police report and the statement on oath of Surai Prasad, he had directed a notice to issue in accordance with law, which could only mean that it purported to be an order under Section 145 (1). his order recorded the fact that he had received information that there was a serious dispute between the parties, the opposite parties, had, on receipt of the notice, raised the question as to the likelihood of a breach of the peace-and the Magistrate had expressly applied his mind to that point, and on the evidence before him, come to the conclusion that there was a likelihood of a breach of the peace. The Full Bench then proceeded to see whether because the Magistrate did not strictly comply with the letter of. the law in formulating his order under Section 145 (1), he had no jurisdiction to -. proceed with the case. Mukherji J., (Acting Section 4), speaking for the Court, said:-

We see that if the Magistrate i& satisfied from a police report or other in* formation that a dispute likely to cause breach of the peace exists, he is seized of jurisdiction to take action and he is empowered by the Code to act in a particular manner. If this view be correct, the jurisdiction of the Magistrate arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate does not depend on how he proceeds. There are two things: one is the authority conferred on him to act and the other is how he is to act. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective. If this view be right, the omission on the part of the Magistrate to follow certain directions contained in the Code, although some of these directions may be more important than others cannot be said to deprive him of jurisdiction... The sole criterion given by Section 537 is whether the accused person has been prejudiced or not. The object of procedure is to enable the Court to do justice, but if in soite of even total disregard of the rules or procedure, justice has been done, there would exist no necessity for setting aside the final order which is just and correct simply because the procedure adopted was wrong.

54. Thus, in Ka'poor Chand's case : AIR1933All264 the defect lay not in the assumption of jurisdiction but in its exercise. The necessary material for the Magistrate's satisfaction was on the record: he perused the material: he ordered notice to issue and a reply to be filed; he mentioned in the notice that there was a serious dispute; only he had not expressly said that the dispute was such that it was , likely to cause a breach of the peace, nor given the ground on which such likelihood was based. The case is covered bv the observation of their Lordships of the Supreme Court in R. H. Bhutani's case : 1969CriLJ13 that these facts 'were prima facie sufficient and were the reasons leading to his satisfaction.' Indeed, when Kapoor Chand challenged the question of likelihood at a subsequent stage, the Magistrate, recorded a finding on a consideration of the totality of the evidence before him. Kapoor Chand's case : AIR1933All264 is, therefore, to my mind, distinguishable.

55. In Dava Ram Sharoia's case 'Cri Revn. No 252 of 1971, D/- 23-8-1974 (All) : (1975 Cri LJ 885) (All) (FB) the Magistrate made a reference to the competent Civil Court under Section 146 (1) wherein he specifically mentions that he crtuld not reach anv decision on the question of possession but he did not give any reasons for his inability and did not draw tip a statement of the facts of the case before forwarding the record to the Civil Court. This order was challenged in revision on the ground of failure on the part of the Magistrate to give reasons for his inability to decide and on the further ground of omission to draw up a statement' of the facts of the case. The Full -sv Bench observed that it is the primary duty of the Magistrate to inquire into the question of possession under sub-5ection> (4) and to pass a* final order under subsection (6), The Magistrate is not however under any statutory obligation to decide-the question. The words 'if possible',, occurring in Sub-section (4) clearly show that it is not mandatory on his part to> formulate a decision on the question of possession if. it should present insurmountable difficulties. On the happening: of this, that is to say, if he is unable to> decide as to which party was in possession, he can refer the dispute under Section 146 (1). The Magistrate thus has alternative jurisdiction,- namely to decide the question himself, if possible, or to refer the question to the, civil Court, it he is unable to decide. If he does not decide, he exercises his jurisdiction: and similarly, if he refers the case, he exercises his alternative jurisdiction. It is in< this sense that the Full Bench held that ! the existence of jurisdiction,^ veiv different frorn the exercise of jurisdiction.. The failure to comply with the statutory * requirements in the assumption of iurisr diction and in the exercise of that jurisdiction, entails very different consequences. The authority to deal with a matter at all is what makes up jurisdiction. . Where there is such jurisdiction, the decision of all other questions in the matter is only, an exercise of that jurisdiction. Now, the Magistrate had exercised; his jurisdiction and made a reference and the failure to give the reasons or draw up-a statement of facts, was a failure in. the exercise of jurisdiction and not in its assumption. This case also thus has no application, r

56. In : AIR1958All803 (supra), the Magistrate, after passing the preliminary order and taking evidence of both parties, dropped the proceedings on the grounds that the evidence of the petitioner 'Ganga Singh himself was to the effect that no quarrel had1 taken place regarding possession and this proved that there was no apprehension of a breach of the peace, Desai. J. (as his. Lordsiup then was) overruled this reason- * ing of the Magistrate on the basis of the principles of onus probandi and observed l that the onus lies on the petitioner before the passing of the preliminary: order and once he has discharged that. onus culminating in the passing of the preliminary order, he is no longer required to prove subsequently that such a dispute existed or continues to exist. If it did not exist or has ceased to exist, the onus is on the , opposite party to lead evidence about, it and it is only when he satisfies the Magistrate about it that the latter would be bound to drop the proceedings. A Magistrate, therefore, would be acting illegally if he drops the proceedings on the ground that the applicant has not led evidence to prove that a dispute involving a breach of the peace existed and still continues. He, however, observed that if the opposite party leads evidence and satisfies the Magistrate that such a dispute never existed or has ceased to exist, 'the Magistrate is divested of jurisdiction to proceed further in the case and must drop the proceedings,' Desai J., further proceeded to make the observation which has been' quoted by My Lord the Chief Justice in his Judgment. That observation, though obiter, is. quite correct because no presumption of cessation of likelihood could be made from the fact that after attachment, the parties cannot disturb the peace in respect of the property which is the subject-matter of the attachment. Mulla, J., who was a member of the Division Bench, disagreed with Desai, J., on the question of onus probandi but agreed with him on the question of the jurisdiction of a Magistrate to proceed further, and in this connection, placed reliance upon Manindra Chandra Nandi v, Bajrada Kanta Chow-dhry (1903^ ILR 30 Cal 112. which held that:

The existence of a dispute likely to cause a breach of the peace is a condition precedent absolutely necessary to enter upon an inquiry as to possession That being so, there does not appear to be anything in Ganga Singh's case 1958 Cri LJ 1369 (All) which may be contrary to the view taken by me.

57. In Khudiram Mandal v. Jiten- dra Nath : AIR1952Cal713 . the Magistrate had passed a preliminary order and had mentioned therein that he was satisfied that there was a likelihood of a breach of the peace, though the reasons for his satisfaction had not been incorporated therein. Cha-kravarti, J., held that failure to give the reasons makes an order defective and such an order can be quashed by the High Court, if challenged in proper time, as was done in Mohesh Sowar v. Narain Bag (1900) ILR 27 Cal 981, but if the proceeding is allowed to Ho on without challenge it can be set aside only on the basis of prejudice. Sinha. J., took a slightly different view and held that if the order does not give reasons but refer to the police report it would be valid, but where it does not give the reasons and also does not refer to the police report, it would be defective, but the omission will have to be judged on the touch-stone of prejudice. It was a cas.e, therefore, where the Magistrate had passed the preliminary order after expressing his satisfaction about the likelihood of a breach of the peace and, therefore, the defect was not in assuming jurisdiction but in the exercise thereof. The second matter that fell for determination related to the application of Sub-section (5), The facts were that the second party and one first party alleged that there was no likelihood of a breach of the peace by them, but neither credited persons other than himself with similar pacific intentions. The second first party contended that there wa& no likelihood of a breach of the peace between him and the second party but did not say what the position was between himself and the other first party who had made a first information report alleging breach of peace between him and the other first party, and had also applied for the transposition of that other first party as a second party, Cha-kravarti, J., held that there could be no question of cancelling the order when each party only professed his own love of peace. Sinha, J., observed that one had only to read the written statements to be disabused of the impression that the parties really intended to say that no apprehension of a breach of the peace existed. He expressed himself thus:

The question of being satisfied as to the likelihood of a breach of the peace occurring, is an element to be considered for an order under Section 145 (1). but once the proceedings had been validly initiated, it is not one of the essential ingredients in passing the final order under Section 145 (6).

He further held:

No doubt, the jurisdiction being a preventing one, the moment a Magistrate is satisfied that there i no longer a possible apprehension of a breach of the peace, he should bring the proceedings to an end. But that does not mean that he should at every stage go on recording his satisfaction as to the existence or otherwise of such an apprehension. If he chooses to o on, it must be presumed that he is not satisfied that the apprehension has ceased.

58. It is apparent that the parti es in the above case had only alleged in their written statements that there was no apprehension of a breach of the peace on their part; neither of them attributed a simlar pacific intention to the other party: neither of them led any evidence on the controversy, and it w;s asjgued that the Court suo motu should have called for evidence. Thus there arose no occasion for the cancellation of the preliminary order, Sinha, J.'s observation that if the Magistrate chooses to go on, it must be presumed that he is not satisfied that the apprehension has ceased, is mere obiter, and. at any rate, with all respects, 1 find myself unable to agree with this obiter.

59. In the instant case, a definite plea was taken in the written statement that likelihood of a breach of the peace never existed, Evidence was given by both parties on this question of fact. The satisfaction of the Magistrate at the time of the preliminary order, was based upon the then existing evidence. The situation had changed since then as both parties had filed their written statements one. taking the plea that apprehension of breach of the peace continues, and the other repelling it by a denial and alleging that there never existed any such likelihood, and each party supported his assertion by filing affidavits. It is not a case in which the Magistrate did pass an order that he was satisfied that a breach of the peace had existed or continues to exist. Had he passed such an order, and not given his reasons, the matter would be entirely different because it would only amount to an irregular exercise of jurisdiction. It is a case, on the other hand, where there is complete silence, If we read Sections 145 and 146, the latter being a corollary to the-former, it would appear that the Magistrate may be called uDon to exercise his iurisdiction at three different stages, pnce while assuming iu-risdietion at the stage of Section 145 (1), for a second time, when his .iurisdiction to proceed further is challenged, and for a third time, when the iurisdiction is not challenged, but he finds it not possible to decide the question and wants to suspend his jurisdiction and pass on the jurisdiction of deciding the auestion of' possession to the Civil Court of competent jurisdiction. By not deciding the challenge to iurisdiction under Sub-section (5), and by keeping silent, he clearly refuses to exercise his jurisdiction which goes to the root of 'the matter. One should not forget that his future jurisdiction hangs upon that decision. If he decides that the likelihood oj a breach of the peace had existed or exists, his jurisdiction derived at the stage of Section 145 (1) will continue and he^ might decide the question of possession, or exercise his alternative jurisdiction, and make a reference to the Civil Court. If on the other hand^he finds that the likelihood had never existed or does not exist, his jurisdiction to decide the question of possession himself or to refer the case to the Civil Court, both come t0 an end, I am of the view, therefore, that a final order passed, in such circumstances, would be coram non judice.

60. Altogether, therefore, I am of the view that the thr,ee Division Bench decisions of this Court .lay down the correct law.

Onkar Singh, J.

61. I have gone through the judgments prepared by Hon'ble the Chief Justice and brother K. B. Sriv-astava, J. I.fully subscribe to the reasoning and view taken by Hon'ble K. B. Srivastava, J.

62. Our answers to the two questions are as follows:-

(1) The Supreme Court decision in the case o.f : 1969CriLJ13 , does not lay down the law that even if a plea is raised under Sub-section (5) of Section 145 of the Code of Criminal Procedure., 1898, such a plea must be rejected once the Magistrate had arrived at the conclusion under Sub-section (1) of Section 145 that there was an apprehension of a breach of the peace.

(2) The. Division Bench decisions of this Court in : AIR1958All803 and 1969 All WR (HC) 317 lay down good law.


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