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Radha Mohan S/O Laxman Prasad Vs. Rajaram Vaishya and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 99 of 1957
Judge
Reported inAIR1958MP346; 1958CriLJ1318
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145 and 145(1)
AppellantRadha Mohan S/O Laxman Prasad
RespondentRajaram Vaishya and ors.
Appellant AdvocateAnand Bihari Mishra, Adv.;Shivadayal, Adv.
Respondent AdvocateNirmal Kumar Jain, Adv.
DispositionReference dismissed
Cases ReferredDulla v. The State
Excerpt:
.....145 cr. that is, the superior courts cannot ask the magistrate to proceed as if there might be a breach of peace, while he himself says that he is not satisfied that there is going to be any. but how far they may go is a matter of assessment in the light of the entire body of circumstances, the attitude of the parties, the value of property, the lapse of time and the immediate availability of brakes on the parties like the police, the well-wishers, and, the local public opinion. me wants that the superior courts should be satisfied on the reasonableness and the propriety of the magistrate's decision that there is not going to be a breach of the peace in a particular case. actually the learned sessions judge has noticed this ruling as well as another madras ruling to the same effect,..........that is, the superior courts cannot ask the magistrate to proceed as if there might be a breach of peace, while he himself says that he is not satisfied that there is going to be any. . but once he decides that there is going to be breach of the peace he will have to proceed judicially under the law.4. a magistrate who starts proceedings on satisfaction of likelihood of the breach of the peace, and subsequently drops them because he now thinks that, after the lapse of time or the happening of certain events, no more breach of the peace is likely has taken the responsibility on himself. in fact, he would be failing in his duty if he does not take such responsibility. how he comes to that conclusion is his business, subject of course to such representations and reports the police.....
Judgment:
ORDER

H.R. Krishnan, J.

1. This is a reference by the District and Sessions Judge, Bhind, recommending that the order of the S. D. M. Bhind dated 21-11-1956 dropping proceedings under section 145 Cr. P. C. should be set aside. The question for consideration is whether this Court in revision is competent to consider whether there was sufficient material satisfying the Magistrate that there was no more likelihood of the breach of the peace.

2. The facts of the case are simple. Between the parties mentioned in the proceedings there was some dispute in regard to a piece of open land between their houses each claiming as usual that the land belonged to it and was in its possession. The police submitted a report for action under Section 145 Cr. P. C. on 14-9-1955. The Magistrate started proceedings and also attached the land pending disposal. After about 14 months the Magistrate passed an order that there was no more likelihood of a breach of the peace and, therefore, the proceedings should be dropped and the land released from attachment.

One of the parties namely Radha Mohan, went in revision to the Sessions Court alleging that the Magistrate had no jurisdiction for holding that there was no likelihood of the breach of the peace and requesting that a report should be made to this Court for setting aside the order of the Magistrate and for directing a decision on merits of the claim to possession. The learned Sessions Judge has made a report in which he has held that the mere fact that there has been no further violence does not justify an inference that there would be no breach of the peace. He states that there was nothing in the order of the Magistrate indicating that there was really information that no breach of the peace was likely.

The learned Sessions Judge does not doubt the competency of the Magistrate, and, in fact, his legal duty to drop the proceedings if he is satisfied that there might be no breach of the peace. In this case, however, he feels that the 'source' from which the Magistrate decided that no breach of the peace was likely has not been divulged, and there is nothing to indicate how the Magistrate came to that finding. Therefore, he recommends that the order dropping the proceedings and releasing the land from attachment should be set aside and the Magistrate should be directed to continue the proceedings and give a finding on possession.

3. In my opinion, the mere statement of the facts of the case show that the recommendation is ill-conceived. Whether in certain circumstances a breach of the peace may be apprehended is a matter for executive discretion. But once the Magistrate in satisfied that a breach of the peace is likely between the parties both claiming to be in possession of land then he has to proceed judicially in the manner laid down under Section 145 Cr. P. C. In regard to his part in the assessment of the circumstances and tendencies towards a possible breach of the peace superior courts have no jurisdiction; that is, the superior courts cannot ask the Magistrate to proceed as if there might be a breach of peace, while he himself says that he is not satisfied that there is going to be any. . But once he decides that there is going to be breach of the peace he will have to proceed judicially under the law.

4. A Magistrate who starts proceedings on satisfaction of likelihood of the breach of the peace, and subsequently drops them because he now thinks that, after the lapse of time or the happening of certain events, no more breach of the peace is likely has taken the responsibility on himself. In fact, he would be failing in his duty if he does not take such responsibility. How he comes to that conclusion is his business, subject of course to such representations and reports the police or even the parties themselves may choose to make to him.

There is no question of any 'source' or 'information' or evidence that there is going to be or there may not be a breach of the peace. Whether there is a dispute or not can certainly be ascertained because the parties then come and state their claims. But how far they may go is a matter of assessment in the light of the entire body of circumstances, the attitude of the parties, the value of property, the lapse of time and the immediate availability of brakes on the parties like the police, the well-wishers, and, the local public opinion.

The superior courts need not, and most often cannot, offer any guidance to the Magistrate whether in a particular case a breach of the peace is likely. It is entirely his business. Once he has decided that it is not likely the superior courts do not come in because the very jurisdiction to proceed under Section 145, Cr. P. C, is based upon likelihood of the breach of the peace. The legal position and the principles set out in decided eases is really against the recommendation of the learned Sessions Judge. Me wants that the superior courts should be satisfied on the reasonableness and the propriety of the Magistrate's decision that there is not going to be a breach of the peace in a particular case.

They cannot do this. On the other hand, once the fear of the breach of the peace is not there, the Magistrate himself has to stay his hands. In the case reported in Gangadhar v. State, AIR 1952 All 580 (A), the High Court held that when a Magistrate finds there is no likelihood of the breach of the peace it was his duty to drop the proceedings. The Magistrate had no jurisdiction to give a finding on possession. The case of Dulla v. The State, AIR 1953 All 341 (B) goes a step farther.

There the Magistrate had not given an express finding that there was any danger of the breach of the peace, in spite of it, he went through the entire gamut of procedure prescribed by Section 145 Cr. P. C. The Court hold that this was unwarranted by law because the very foundation for action under that section disappears once it is found there is no danger of breach of the peace. After such finding the Magistrate cannot convert himself into a civil court and go on to decide the case on merits or to give a finding on the question of possession.

The ruling reported in Re Ivaturi Sambasiva Rao AIR 1954 Mad 1017 (C), lays down that a Magistrate starting proceedings under Section 145 could drop them under various circumstances as for example on the ground that no breach of the peace is likely to occur in the near future. Actually the learned Sessions Judge has noticed this ruling as well as another Madras ruling to the same effect, but his point is that the Magistrate has not satisfied him how he came to the conclusion that a breach of the peace was no more likely. I have given answer to this earlier that it is entirely the Magistrate's concern and superior courts are not competent to go into it.

5. The learned Sessions Judge has remarked on the unbusinesslike conduct of the case before the Magistrate. But the reference is not based on that.

6. In the result, the reference is rejected.


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