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Sankatha Singh Vs. Rahmat Ullah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1973CriLJ1091
AppellantSankatha Singh
RespondentRahmat Ullah and ors.
Cases ReferredRamji Singh v. State of U. P.
Excerpt:
.....breach of peace did not exist or has ceased to exist, the order can be revised under section 435, criminal procedure code. in such an eventuality, an argument that the magistrate was not satisfied with the evidence and so he did give his reasons in writing for not cancelling the preliminary order would be futile and without any material on record. to us the position seems to be perfectly simple. if the magistrate is satisfied, either upon the police report or upon other information that there existed a dispute likely to cause a breach of the peace concerning any land etc. , he may make a preliminary order in writing stating the ground of his being so satisfied. in this view of the matter, when a magistrate vacates the order of attachment on being satisfied that the apprehension of..........consequences and will be opposed to the very principles of natural justice.13. section 435, criminal procedure code empowers the high court, sessions judge, district magistrate or any sub-divisional magistrate empowered on this behalf to call for and examine the record of any proceeding before any inferior criminal court to satisfy itself or himself the correctness, legality or propriety of any finding, sentence or order recorded or passed. this power is conferred in all criminal cases. in cases where the preliminary order is cancelled by a magistrate on being satisfied that the apprehension of breach of peace did not exist or has ceased to exist, the order can be revised under section 435, criminal procedure code. but what would happen where the evidence is satisfactory and yet.....
Judgment:

K.N. Srivastava, J.

1. The facts giving rise to this reference are as follows:

2. Sankatha Singh applicant filed an application under Section 145, Cr.PC with the allegations that he was owner in possession of plot No. 129 area .70 acre situated in village Kushmura, P.S. Baragaon District Varanasi with which opposite parties have no concern; that opposite parties wanted to take forcible possession over the aforesaid plot which gave rise to apprehension of breach of peace.

3. A police report was called by the Sub-Divisional Magistrate. On 5-1-1970 the police reported that there was apprehension of breach of peace between the parties regarding the land in dispute. Acting on this report, the Sub-Divisional Magistrate passed the preliminary order under Section 145(1), Cr.PC on 6-1-1970 and directed the parties to file their respective written statements. Banarsi made an application to be added as a party. It was allowed and he also filed his written statement claiming .47 acre area to be in his possession on basis of a sale-deed of the year 1923. Both the opposite parties contended that there was no apprehension of breach of peace and led evidence in support of their above contention.

4. The learned Sub-Divisional Magistrate made a reference to the Civil Court as provided under Section 146, Cr.PC The learned Munsif held that the first party was in possession of the land in dispute on the date of the preliminary order. The reference was made without recording a finding as to whether an apprehension of breach of peace existed although the existence of breach of peace was challenged by the opposite parties and evidence was led on this question.

5. After the finding of the learned Munsif was recorded another application was made by both the opposite parties that there was no apprehension of breach of peace and the proceedings be dropped. On 23-12-1970 argument was heard on the question and 7-1-1971 was fixed for evidence on the question of breach of peace. No further evidence was led. On 17-2-1971, the learned Sub-Divisional Magistrate recorded a finding that no apprehension of breach of pence existed and the proceedings under Section 145, Cr. P. C, was dropped.

6. Being dissatisfied, the first party filed a revision in the Court of the Sessions Judge, Varanasi who made a reference for quashing the aforesaid order passed by the Sub-Divisional Magistrate. This reference came up for hearing before a Single Judge of this Court. Before the Single Judge, two decisions of this Court were cited. One was a Division Bench decisionSheo Nath Singh v. Mannoo Singh Yadava, 1969 All WR (HC) 817, and the other was a Single Judge decision Ramji Singh v. State of U. P. 1972 All WR 445 : 1972 Cri LJ 1542. The learned Single Judge was of the view that the decision in Ramji Singh's case (supra) was not correct and, therefore, this reference was referred to this Bench.

7. Two legal questions arise for determination in this case. One is whether after the preliminary order is passed and cognisance is taken, is the Magistrate bound to record a separate finding when the existence of breach of peace is challenged and evidence is led on this question rejecting or accepting the above plea. The second question arises is as to whether the Magistrate has the power to drop the proceedings under Section 145, Cr.PC even after the finding of the Civil Court is received one way or the other.

8. Section 145(1), Cr.PC lays down that when a District Magistrate, Sub-Divisional Magistrate or a Magistrate First Class is satisfied about the existence of breach of peace either on police report or on any other information that there is an apprehension of breach of peace, he has to record his reasons for the same in writing of his being so satisfied and after recording this preliminary order, the Magistrate shall call upon the parties to file their respective written statements and to prove their respective claims by affidavits or evidence.

9. Section 145(5), Cr.PC reads as below:

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 Sub-section (1) shall be final.

10. In this sub-section, the most relevant word is 'showing'. Law Lexicon gives the following meaning of the word 'show'.

to make it clear and apparent by evidence, testimony or reasoning and to prove.

11. The above meaning of the word 'showing', therefore, makes it clear that after challenging the existence of apprehension of breach of peace, a party has to prove it by reliable evidence that the apprehension of breach of peace did not exist or has ceased to exist. It is then and then alone that the Magistrate shall cancel his preliminary order passed earlier. In case it is not cancelled, then the said preliminary order shall become final. Therefore, what emerges from the reading of the section is that the party concerned has not only to challenge the existence of apprehension of breach of peace but has also to adduce reliable and convincing evidence in support of this fact.

12. A question will arise that the evidence adduced was not found satisfactory by the Magistrate concerned and, therefore, he did not cancel the preliminary order which became final. The question has to be decided objectively after considering the evidence on the record. The matter is not left at the sweet will of the Magistrate otherwise it might result in serious consequences and will be opposed to the very principles of natural justice.

13. Section 435, Criminal Procedure Code empowers the High Court, Sessions Judge, District Magistrate or any Sub-divisional Magistrate empowered on this behalf to call for and examine the record of any proceeding before any inferior criminal court to satisfy itself or himself the correctness, legality or propriety of any finding, sentence or order recorded or passed. This power is conferred in all criminal cases. In cases where the preliminary order is cancelled by a Magistrate on being satisfied that the apprehension of breach of peace did not exist or has ceased to exist, the order can be revised under Section 435, Criminal Procedure Code. But what would happen where the evidence is satisfactory and yet the order is not cancelled, and no reason in writing is given for not accepting the evidence adduced by the party. In such an eventuality, an argument that the Magistrate was not satisfied with the evidence and so he did give his reasons in writing for not cancelling the preliminary order would be futile and without any material on record.

Accepting such an argument will amount to denial of the very foundation of natural justice. In this view of the matter, it appears just, equitable and proper .that when the existence of apprehension of breach of peace is challenged and evidence is led, the Magistrate must record a finding as to whether the evidence was sufficient to show that the apprehension of breach of peace did not exist, ceased to exist or it existed and continued to exist.

14. In the light of the above discussion, the following observation in 1969 All WR (HC) 817 (supra) can be read with advantage:

To us the position seems to be perfectly simple. Proceedings under Section 145, Criminal Procedure Code may be initiated either by a party or upon a police report. If the Magistrate is satisfied, either upon the police report or upon other information that there existed a dispute likely to cause a breach of the peace concerning any land etc., he may make a preliminary order in writing stating the ground of his being so satisfied. The order is then served upon the parties requiring them to appear and to put in their written statement, document, affidavits and, oral evidence. The Magistrate may, if he' considers the case one of emergency attach the property. If after the parties have appeared, the existence of such a dispute is not challenged, the preliminary order becomes final and the Magistrate is then to decide whether any and which of the parties is in possession. But if any of the parties or any other person challenges the existence of such a dispute and adduces evidence to support his contention the Magistrate must first decide this question. The raising of this question really amounts to the raising of a jurisdictional question. Sub-section (5) provides that the Magistrate 'shall cancel' the preliminary order if it is shown to him that no such dispute exists or had existed. How can this be shown to the Magistrate unless he examines the material placed before him and arrives at a conclusion one way or the other? 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 writting together with his reasons therefor either as a part of the final order or as a separate order. Neither on principle nor on authority can the view be justified that the Magistrate need not record his 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 has gone on to decide the question of possession.

We are, therefore, in entire agreement of the principle laid down in Sheo Nath Singh's case 1969 All WR (HC) 817 that where the existence or the apprehension of breach of peace is challenged and evidence is led, the Magistrate must record a finding one way or the other because the very foundation of the jurisdiction of a Magistrate in cases under Section 145, Criminal Procedure Code is based on the existence of a dispute giving rise to apprehension of breach of peace. It has been the constant view of this Court and other High Courts that as soon as the apprehension of breach of peace ceased to exist or if it never existed, the jurisdiction of the Magistrate to proceed with the case ceases and the only order ho has to pass is to drop the proceeding and to release the property in dispute.

15. The power of the Magistrate to act under Section 145(5), Criminal Procedure Code is in no way curtailed after he has proceeded under Section 146, Criminal Procedure Code. Sections 145 and 146, Criminal Procedure Code have both to be read together. If Section 146, Criminal Procedure Code was to be read independently of Section 145, Criminal Procedure ode, it will be impossible to reconcile the provisions of both the sections. They are not exclusive of each other. In this view of the matter, when a Magistrate vacates the order of attachment on being satisfied that the apprehension of breach of peace has ceased to exist, his jurisdiction to proceed with the case ceases to exist and he has no option left but to pass another order cancelling the preliminary order. We do not think that when the jurisdiction of the court which refers a question of possession to the Civil Court under Section 146, Criminal Procedure Code ceases to exist, the Court, to which the reference is made, continues to have its jurisdiction. It was argued that proviso to Section 146, Criminal Procedure Code does not speak of an order cancelling the preliminary order and, therefore, all that a Magistrate is empowered after proceeding under Section 146, Criminal Procedure Code is to vacate the order of attachment. For the reasons given above, we do not agree with this argument. The Legislature had empowered the Magistrate to cancel the preliminary order as provided under Section 145(5), Criminal Procedure Code and, therefore, there was no need to make a further mention of it in the proviso to Section 146, Criminal Procedure Code. We are, therefore, of the opinion that the Magistrate, even after the reference had been made, has power to proceed under Section 145(5), Criminal Procedure Code and to cancel the preliminary order if the situation so demands. From a perusal of the judgment in 1972 All WR (HC) 445 : 1972 Cri LJ 1542 (supra), it appears that Sheo Nath Singh's case was brought to the notice of the learned Single Judge who observed as below:

The Division Bench has held that the raising of this question really amounts to the raising of a jurisdictional question and, therefore, duty is cast upon the Magistrate to decide the question raised before him. But in my opinion in a case where the plea is taken but no evidence is adduced in support of the plea or even if the evidence is adduced that the plea is not pressed before the Magistrate, the Magistrate is not bound to decide the question. In the instant case it has not been shown to me that the applicants adduced any evidence in support of the plea taken in the written statement and from the conduct of the applicants as it appears the plea on the basis of the evidence if any, was given up by the applicants and, therefore, in every case the Magistrate is not bound to record a finding as required under sub-clause (5) of Section 145, Criminal Procedure Code. Sub-clause (5) of Section 145, Criminal Procedure Code puts a check on the continuation of the proceeding but does not take away the jurisdiction of the Magistrate which is vested in him and which he exercises under sub-clause (1) of Section 145, Criminal Procedure Code. If the Magistrate before the passing of the order under Section 145, Criminal Procedure Code had omitted to pass any order under sub-clause (5) of Section 145, Criminal Procedure Code the parties could proceed under the proviso to Sub-section (1) of Section 145, Criminal Procedure Code and apply to the Magistrate once again that there was no longer any likelihood of breach of peace in regard to the subject-matter of dispute and he should withdraw the attachment and the Magistrate, if he is satisfied would do so but in the instant case the applicants did not move the Magistrate under the proviso to Section 146(1), Criminal Procedure Code and awaited the result of the finding of the Civil Court. The finding was recorded by the Civil Court under Section 146(1-B), Criminal Procedure Code and when once the finding in the proceedings was submitted to the Magistrate, the Magistrate was bound to proceed to dispose of the proceedings under Section 145, Criminal Procedure Code in conformity with the decision of the Civil Court and he could not have thereafter adverted to Section 145(5), Criminal Procedure Code. The applicants in the instant case did not even apply to the Magistrate once, again after the receipt of the finding of the Civil Court that there was no apprehension of breach of peace between the parties and he could drop the proceedings under Section 145(5), Criminal Procedure Code. From the conduct of the applicants as it appears it could well be inferred that although a plea was taken by the applicants in the written statement they did neither seriously press the plea before the Magistrate nor took any steps thereafter and awaited the result of the finding and the order of the Magistrate. In my opinion, therefore, they cannot be allowed to raise such a plea of jurisdiction. There was no lack of jurisdiction in the Magistrate and as I have already expressed my opinion earlier that sub-clause (5) of Section 145, Criminal Procedure Code only puts a break on the jurisdiction that is being exercised by the Magistrate under sub-clause (1) of Section 145. It does not take away the jurisdiction which he has once exercised and if under Section 145(5) the Magistrate comes to a finding at a later stage that there is no apprehension of breach of peace he may drop the proceedings. In my opinion, the proceedings of the Magistrate are not vitiated and the Division Bench case does not help the applicants.

16. With due deference to the learned Single Judge, we do not agree with the above reasoning. Once a Magistrate records a finding under Section 145(5), Criminal Procedure Code that breach of peace did not exist or it ceased to exist, his jurisdiction to proceed with the case comes to an end. If he had proceeded earlier on the assumption that there was an apprehension of breach of peace, he had acted without any jurisdiction. Thus, as said above, the foundation of jurisdiction of a Magistrate to proceed under Section 145, Criminal Procedure Code is based on his being saisfied that there was a dispute which was likely to result in breach of peace. vSection 145(5), Criminal Procedure Code has a wide scope and the provision can be applied at any stage because the proceedings under Section 145, Criminal Procedure Code are only of a quasi-judicial nature and the final order passed by a Magistrate under Section 145 Criminal Procedure Code is subject to decision by a competent Civil Court. Section 145, Criminal Procedure Code was brought on the Statute only to check breach of peace and, therefore, it could only be applicable so long as the breach of peace exists. In this view of the matter, the Magistrate has power to drop the proceedings even after the receipt of the finding by the Civil Court, following the provisions contained in Section 145, Criminal Procedure Code subject to the condition that the question of the existence of breach of peace has been challenged and evidence has been led but no finding has been recorded before referring the question of possession to the Civil Court. In such an eventuality, the question of existence of breach of peace has to be decided even though the finding of the Civil Court has been received. It must be made clear that when the above conditions are not satisfied, the question of deciding the above question does not arise and in this garb a Magistrate does not get the power to undo the finding of the Civil Court which is binding on the Magistrate.' Cases may arise where by lapse of time, apprehension of breach of peace might have ceased to exist and the parties, instead of fighting their rights in summary proceedings, could very well approach the competent court for redress of the same.

17. In this view of the matter, we are, therefore, of the opinion that the decision in Ramji Singh's case 1972 All WR (HC) 445 : 1972 Cri LI 1542 cannot be taken to be an authority on the question that after the reference under Section 146, Criminal Procedure Code or after the receipt of the finding by the Civil Court, the Magistrate has no jurisdiction to proceed under Section 145(5), Criminal Procedure Code. It should be noted here that in Ramji Singh's case 1972 All WR (HC) 445 : 1972 Cri LJ 1542 there was no evidence except the question of apprehension of breach of peace being challenged in the Civil Court, there was neither evidence nor even an application was made at later stage challenging the existence of apprehension of breach of peace. But, as observed by us earlier, where the question of apprehension of breach of peace is challenged and evidence is adduced, the Magistrate must write an order giving his reasoning one way or the other so that the same could be examined by the superior court for satisfaction that the same was correct and legal.

18. In the instant case, the opposite parties challenged the existence of breach of peace in their written statement. They adduced evidence in support of the same. The Magistrate did not record a rinding on the above evidence either way and referred the question of possession to the Civil Court as provided under Section 146, Criminal Procedure Code. It was then again that the application was made and the Magistrate was requested to decide the question as to whether the apprehension of breach of peace existed or not. No doubt, on the date on which the parties were given time to adduce evidence, no evidence was adduced by the opposite parties but that would not affect the merit of the case because the opposite parties had already adduced their evidence on the point and they could not adduce any further evidence. We have perused the order of the Magistrate holding that breach of peace did not exist and we think that this order is based on the evidence on record. The order passed by the Magistrate in the instant case was fully justified and in accordance with law.

19. For the above reasons, we are, therefore, of the opinion that the reference made by the learned Sessions Judge has no force in it. It is hereby rejected.


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