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Musammat Har Piari Vs. NaThe Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All227; 59Ind.Cas.401
AppellantMusammat Har Piari
RespondentNaThe Lal and ors.
Cases ReferredMahadei v. Beni Pershad
Excerpt:
.....there is a likelihood of the breach of the peace' cannot vitiate the proceedings and do not make it one which is not in law a proceeding under chapter xii of the code of criminal procedure......l.j. 382 : 6 a.l.j. 113 that proceedings under section 145 must be in intention, in form, and in fact, proceedings under chapter xii of the code of criminal procedure by a magistrate duly empowered to not under that chapter. the same has been held by a divisional bench of this court in syeda khatun v. lal singh 25 ind. cas. 324 : 36 a. 233 : 12 a.l.j. 344 : 15 cr. l.j. 572.'4. in the case of mahadeo kunwar v. bisu 25 a. 537 : a.w.n. (1903) 102 mr. justice banerji, at page 538, lays down the law thus: in my judgment the order to which finality is given under those sections must be an order which not only purports to be, but is in reality, an order under section 145, and has been passed with jurisdiction. where the court has exceeded its jurisdiction in making the order it is null and.....
Judgment:

Gokul Prasad, J.

1. This is an application to revise an order under Section 145 of the Code of Criminal Procedure. A preliminary objection has been taken by the learned Government Advocate that no application in revision lies having regard to the express provision of Section 435, Clause (3) of the Code of Criminal Procedure. If the matter had not been covered by authority, I would have had some difficulty in entertaining this application in revision, because, if the High Court cannot even send for the record of proceedings under Chapter XII of the Code of Criminal Procedure, I cannot understand on what principle it can interfere with those orders when the record has once some before it on, as I might say, an order passed for sending for the record under Section 435 of the Criminal Procedure Code which was not warranted by law. However, leaving this aspect of the question aside, it has been held in a large number of cases that this Court can interfere if there has been not a proceeding either in fact or in law as contemplated by Section 145 of the Criminal Procedure Code.

2. I shall now briefly refer to some of the reported cases of this Court.

3. In the case of Brahma Nath v. Sundar Nath 51 Ind. Cas. 170 : 17 A.L.J. 434 at p. 442 : 20 Cr. L.J. 410 Mr. Justice Knox observed as follows: 'It has been held over and over again by this Court, for example, in Jhingai Singh v. Ram Pratap 1 Ind. Cas. 762 : 31 A. 150 : 9 Cr. L.J. 382 : 6 A.L.J. 113 that proceedings under Section 145 must be in intention, in form, and in fact, proceedings under Chapter XII of the Code of Criminal Procedure by a Magistrate duly empowered to not under that Chapter. The same has been held by a Divisional Bench of this Court in Syeda Khatun v. Lal Singh 25 Ind. Cas. 324 : 36 A. 233 : 12 A.L.J. 344 : 15 Cr. L.J. 572.'

4. In the case of Mahadeo Kunwar v. Bisu 25 A. 537 : A.W.N. (1903) 102 Mr. Justice Banerji, at page 538, lays down the law thus: In my judgment the order to which finality is given under those sections must be an order which not only purports to be, but is in reality, an order under Section 145, and has been passed with jurisdiction. Where the Court has exceeded its jurisdiction in making the order it is null and void, and this Court, in the exercise of its revisional powers, is competent to interfere with it. This has been held by the Calcutta High Court in several cases, of which I may mention the case of Hurbullubh Narain Singh v. Luchmeswar Prosad Singh 26 C. 188 : 3 C.W.N. 49 : 13 Ind. Dec. (N.S.) 725. The same view was held by the Bombay High Court in Pandurang Govind, In re 24 B. 527 : 2 Bom. L.R. 84 : 12 Ind. Dec. (N.S.) 882, and the Madras High Court, in Agra Bank Limited v. Lsishman 18 M. 41 : 2 Weir 100 : 6 Ind. Dec. (N.S.) 378, exercised its revisional powers in such a case. We have, therefore, to see whether the order which the Joint Magistrate purported to make under Section 145 is in fact and substance an order under that section and was passed with jurisdiction.'

5. In the case of Jhingai Singh v. Ram Pratap 1 Ind. Cas. 762 : 31 A. 150 : 9 Cr. L.J. 382 : 6 A.L.J. 113 Mr. Justice Knox observed: 'It has already been held by a Bench of this Court in Maharaj Tewari v. Har Charan Rai 26 A. 144 : A.W.N. (1903) 212 : 1 Cr. L.J. 339 that, as the law at present stands, where the proceedings below are in intention, in form and in fact, proceedings under Chapter XII of the Code of Criminal Procedure by a Magistrate duly empowered to act under that Chapter, this Court has no power to send for those proceedings either under the Code or under Section 15 of the Indian High Courts Act, 1861. It has not been shown to me that the proceedings before the learned Magistrate were not proceedings under Chapter XII of the Code or that he was not duly empowered to act under that Chapter. According to the contention of the learned Advocate, it was after being properly seised of the case that the learned Magistrate went out of his way, passed an order which he had no jurisdiction to pass and that by it the learned Advocate's client has been debarred from all remedy and deprived of the fruits of the base won by him in the Civil Court. This may or may not be so. The fast remains that Section 435 expressly excepts records of proceedings under Chapter XII, and I know of no other Act or Statute which confers upon this Court the power of sending for such proceedings.'

6. This case was approved in the case of Sayeeda Khatun v. Lal Singh 25 Ind. Cas. 324 : 36 A. 233 : 12 A.L.J. 344 : 15 Cr. L.J. 572.

7. The case in Mahadei v. Beni Pershad 65 Ind. Cas. 194 : 18 A.L.J. 171 : 21 Cr. L.J. 242 : 42 A. 214 has been very strongly relied upon by Mr. Malcomson as a ruling in support of the proposition that this Court cannot interfere in revision in proceedings under Section 145 of the Code of Criminal Procedure, but a careful reading of that case shows that it was admitted in that case that the proceedings under Section 145 had been duly taken and they were so in fact and in law. At page 176* Mr. Justice Piggott, in the course of his judgment, says: A Magistrate received information that a dispute likely to cause a breach of the peace existed concerning certain immoveable property, viz., a house, within his jurisdiction. He took proceedings in due form under Section 145 of the Code of Criminal Procedure and came to the decision that possession over the entire house was with the present applicant, Musammat Mahadia, and that she was entitled to be maintained in that position unless and until a competent Court otherwise decided. In so far as he passed an order to the above effect, the case is altogether outside the revisional jurisdiction of this Court'. The italics are mine, and they clearly show that this Division Bench ruling was not intended to lay down a different ruling of law from what had been laid down in the previous case. It is thus clear that, in order to oust the jurisdiction of this Court in revision, the Magistrate should have taken proceedings in fact and in law under the provisions of Section 145, and further that his order should be one which is warranted by the provisions of that Chapter and has been passed with jurisdiction.

8. I have now to see how for the present case is one in which I should interfere in revision, The facts put briefly are as follows: On the 27th February 1920 a complaint was made by Nathe Lal for action to be taken under Section 145 of the Criminal Procedure Code. It is not disputed that the report was made to a Magistrate having jurisdiction to deal with the matter. The Magistrate sent the complaint to the Sub-Inspector of Police for inquiry. After receipt of the report, which showed that there was a likelihood of the breach of the peace, the Magistrate on the 2nd March 1920 passed an order to the following effect: The report of the Police has come and was perused with the record. It is, therefore, ordered that notice be issued to the opposite party for the 12th March 1920, and the parties are to produce evidence of their ownership and actual possession.' It is contended on behalf of the petitioner that this order is bad, inasmuch as it does not say in express words that the Magistrate was satisfied on reading the Police report and that there was a likelihood of the breach of the peace. It is true that the order does not say so in express words, but having regard to the fact that the Magistrate himself directed a Police inquiry in this matter for the purpose of satisfying himself whether there was any apprehension of the breach of the peace before he took any action, the order distinctly suggests that he took the proceedings under Section 145 after having believed in the correctness of the result of the Police inquiry. His order distinctly refers to this report, and it cannot, with any stretch of imagination, be said that he did not consider it. Under these circumstances, the mere omission of the words like 'I am satisfied from the Police report that there is a likelihood of the breach of the peace' cannot vitiate the proceedings and do not make it one which is not in law a proceeding under Chapter XII of the Code of Criminal Procedure. The proceedings being in fact and in law under Chapter XII of the Criminal Procedure Code, this Court cannot interfere in revision. I, therefore, reject the application.


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