1. This is a revision against an order of Sri R. N. Dhal Samanta, Magistrate,Ghumsur Russelkonda, dated 30-5-51, passed under 145, Criminal P. C., confirming the possession of the members of the 1st party. The learned Court below finds possession in favour of the 1st party relying upon quite a number of documents in respect of possession and the oral evidence of the witnesses whom he characterises as independent witnesses.
2. Mr. H. Mohapatra, appearing on behalf of the petitioners, draws my attention to the preliminary order passed on 9-10-50. In the preliminary order, the Magistrate finds that he is satisfied that there is a dispute in respect of the immoveable properties between the parties leading to the likelihood of breach of the peace as appears from the police report dated 23-8-49. Mr. Mohapatra contends that the police report being more than 13 months before the preliminary order was passed, the preliminary order is illegal and without jurisdiction inasmuch as it was based upon no material that there was any likelihood of breach of the peace at the date when the preliminary order was passed. He very strongly relies upon the decision of the Calcutta High Court reported in -- 'Anadilal v. Sughchand', A.IR. 1930 Cal. 715 (A) where the principle has been very clearly laid down that for making an order starting proceedings under section 145, Cr. P. C. it is necessary that the Magistrate should be satisfied at the time of drawing up such proceedings that there is then existing likelihood of breach of the peace arising from disputes between parties as to possession of the land in question. There the order based solely on a police report over six month old was held to be illegal in the absence of anything to show that the conditions existing at the time of the police report were existing at the date of the order. It is absolutely clear from the provisions of Section 145 that it is only the likelihood of breach of the peace that gives jurisdiction to the Magistrate to draw up proceedings under Section 145 : otherwise the mere existence of a dispute between the parties regarding immoveable properties is a matter which is within the jurisdiction of the Civil Court and does not come within, the jurisdiction of the Magistrate. It is obviously clear in the present case that the police report having been old for more than 13 months prior to the date of the preliminary order, it can be said in the eye of law that there was nothing to show the existence of the likelihood of breach of the peace on the date when the order was passed. Therefore, the order, according to Mr. Mohapatra, is one without jurisdiction and as such, the whole proceedings subsequent to the order must be quashed as being illegal and vitiated. He has further relied upon another decision of the Calcutta High Court reported in -- 'Jnanendra Narayan v. Samed Molla', A. I. R. 1943 Cal 559 (B). The self-same principle was examined once more by their Lordships and was enunciated in more emphatical and clear language. There the police report was dated 1-11-40. The proceedings were started on 12-8-41. Their Lordships found that the foundation of the proceedings under Section 145, Criminal P. C., is the existence of a danger to the public peace and the need of urgency in dealing with it by the Magistrate as responsible for the preservation of the peace, preparatory to the disputes of the parties being taken before the Civil Courts. It is really difficult to reconcile the course of events in the present proceedings with this conception which, in my opinion, is also fundamental conception and goes to the very root of the jurisdiction of the Court.
I may also refer to a decision of the Patna High Court of Bucknill J. in the case of -- 'Cheddilalv. Mahabir Prasad', A. I. R. 1921 Pat 445 (0). His Lordship observes
'In order that proceedings should be legal under Section 145, Criminal P. C., the information upon which a Magistrate purports to act must be information, which is of a character which properly satisfies him that at the date when he draws up those proceedings there was an actual likelihood of a breach of the peace.'
Bucknill, J. relied upon an earlier decision of the Calcutta High Court of two very eminent Judges of India (Trevelyan and Rampini, JJ.) in the case of -- 'Tarini Charan Chowdhury v. Amulya Ratan Roy', 20 Cal. 867 (D). Bucknill, J. observes:
'I cannot, I think, put the matter in better language than that in which it is expressed in the case of -- 'Tarini Charan v. Amulya Ratan Boy', (D), a decision of Trevelyan and Rampini, JJ. There in the judgment of the Court it is said: 'under Section 145 it is necessary that there should be a preliminary proceeding and such order shall be in writing, stating the grounds on which the Magistrate has been satisfied that a dispute likely to cause a breach of the peace exists. Now, the proceeding in this case is dated 15-10-1892 and it recites as its basis a report of, the Sub-Inspector of the Nawapara outpost, from which it appeared to the Magistrate that there was likelihood of a breach of the peace. This report of the Sub-Inspector appears to be the old report of April 1892, and this on the face of the proceedings is its only basis. We think that the Magistrate was not right, in October, in acting only upon a report dated the previous April ...... ...... .. Itis not always easy to say what interval should elapse between an information and proceeding ......The likelihood which may then have existed and which might have reference to the probable breach of the peace referred to by the Magistrate, was not now what he now refers to' '.
On a perusal of the above decision, it appears to me to be very clear that the question goes to the very root of the jurisdiction of the Magistrate initiating the proceedings; and if really the material on which the Magistrate passed preliminary order initiating the proceedings was no material at all on the question of existence of a likelihood of breach of the peace at the date on which the order was passed, the Magistrate had no jurisdiction and the whole proceedings must be deemed to be illegal and, as such, liable to be quashed.
3. Mr. B. K. Pal, appearing on behalf of the opposite party, places strong reliance upon Sub-section (5) of Section 145, Criminal P. C., which runs as follows:
'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.'
He contends that the point was certainly irresistible if Mr. Mohapatra had come up in revision against the order passed under Sub-section (1), that is against the order dated 9-10-50, initiating the proceedings. But now that the parties had adduced evidence and Mr. Mohapatra's client had waited for a chance of an order in his favour he is not competent to challenge the order previously made initiating the proceedings. In my opinion, if the order initiating the proceedings is to be found as not merely an irregularity but a clear case of illegality affecting the jurisdiction of theMagistrate and going to the very root of the powers of the Magistrate having seisin over disputes regarding immoveable properties, the point can be taken at this stage and the order can be quashed. Examining the cases cited above, I find it clear from the cases reported in -- 'A. I. R. 1943 Cal. 559 (B)', and -- 'AIR 1921 Pat 445 (C)', that the revision was against the final order confirming possession of the parties under Section 145. This seems to be also the case in -- 'AIR 1930 Cal. 715 (A)', in which the revision was filed against the order which was passed nearly two-years after the preliminary order was passed. Mr. B. K. Pal relies upon a Bench decision of the Patna High Court reported in -- 'Sibnarayan Das v. Satyadeo Prasad', AIR 1943 Pat. 44 (E). He very much relies upon the following observations:
'The Magistrate drew up the proceeding on 18-12-1940. If the Magistrate acted in excess of his jurisdiction, and the second party felt aggrieved by his order, they could have come up in revision against that order. But they did not do so and chose to wait and take the chance of judgment in their favour. The proceeding continued for about a year, the final order being dated 23-12-1941, and both parties examined a number of witnesses and produced various documents .......... ........ The second partyhaving waited for a year and having allowed, the order initiating the proceeding to go unchallenged so long, cannot now be heard to complain of excess of jurisdiction, because the final order has gone against them'.
But on examining the case, I find that their Lordships were impressed with the position that there were materials on record justifying initiation of the proceedings under Section 145.
'Some materials undoubtedly there were. Whether those materials were sufficient or not was entirely for the consideration of the learned Magistrate. The High Court cannot go into the sufficiency or otherwise of those materials'.
In my opinion, in the case before us, it is not really the question of sufficiency or otherwise of the materials before the Magistrate to initiate the proceeding. Here, there being no material and the police report relied upon by the learned Magistrate initiating the proceedings being no material at all, the question is whether the Court had jurisdiction to initiate proceedings. The present case seems to be on all fours with the three cases that I have referred to above and the case reported in -- 'A. I. R. 1943 Pat. 44 (E)', is clearly distinguishable and the principle does not apply to a case of this nature. Their Lordships also observed:
'The words 'dispute likely to cause breach of the peace exists' in Section 145 contemplate that the dispute must exist and it should be of such a character as likely to cause a breach of the peace unless proceedings are taken under Section 145. There must be present fear that it is probable that there will be a breach of the peace owing to the dispute unless proceedings are taken under the section.'
4. Mr. Pal has referred to a Full Bench decision of the Allahabad High Court reported in -- 'Kapoor Chand v. Suraj Prasad', A. L R. 1933 All. 264 (P). In that case the learned Magistrate did not expressly state that he was satisfied that there was a likelihood of a breach of the peace nor did he mention specifically the grounds on which he was so satisfied. All that he said was that he had perused the record which included the police report and the statement on oath of the petitioner. He directed a notice to issue 'according to law' which can only mean that it purported to be anorder under Section 145 (1), Criminal P. C. Their lordships observed:
'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.'
Their Lordships found that there being in that case a mere defect in the procedure, it was a mere case of irregularity under Section 537, Criminal P. C., and not a case affecting the jurisdiction of the Magistrate inasmuch as there were materials on which the Magistrate could act.
5. I will next discuss the Special Bench case of the Patna High Court reported in -- S. M. Yakub v. T. N. Basu', AIR 1949 Pat 146 (G). Indeed that was not a case where the Magistrate's order under Section 145 (1) was passed upon the police report which was passed long ago. The point before their Lordships was whether failure to state grounds for being satisfied that there was a likelihood of breach of the peace would make the preliminary order without jurisdiction. Their Lordships found that the failure to state the grounds did not touch the question of jurisdiction. There the Magistrate did not act on the police report. He acted on the petition filed by the first party and expressed an opinion that a danger of breach of the peace existed. He did not state his grounds for that opinion. In their Lordships opinion the High Court would be talcing an unjustifiable risk and responsibility in interfering with an order merely for the reason that the Magistrate has not given grounds of his being so satisfied when he has definitely expressed his views that there is a danger to the public peace. On a consideration of the above circumstances, I am definitely of the view that the Special Bench case is so clearly distinguishable from the facts of the present case.
6. The last decision relied upon by Mr. Pal is a Single Bench decision of Das J. of the Patna High Court, reported in -- 'Wasir Mahaton v. Badri Mahtpn', AIR 1950 Pat 372 (H). Here also the question was not one of the order being passed on a police report which was passed very long ago and which could not in the eye of law serve as any material for the purpose of initiating proceedings under Section 145. There the pertinent principle laid down was that mere failure to state the reasons why the Magistrate was satisfied that there was an apprehension of a breach of the peace and the failure to draw up a formal preliminary order in accordance with the provisions of Section 145 (1) are nothing more than mere irregularities not sufficient to vitiate proceedings where no prejudice was caused. In that case, there were materials before the Sub-divisional Magistrate, as found by Das J., on 8-12-48, on which he was satisfied that there was an immediate apprehension of a breach of the peace, and the dispute which gave rise to that apprehension was one which could be more satisfactorily dealt with in a proceeding under Section 145. The learned Sub-divisional Magistrate had before him not only the petition of Badri Maton and Ramkumar Maton but also the report of the local Sub-Inspector of Police dated 25-10-48. In such circumstances, mere failure to state reasons why he was satisfied that there was an apprehension of breach of the peace, or failure to draw up a formal proceeding, is a mere irregularity in view of the materials thatthe learned Sub-divisional Magistrate had before him on 8-12-48 on which he passed the order:
'Heard both parties. This case should be decided on evidence. Draw up proceedings under Section 145, Criminal P. C. against both parties asking them to show cause, if any, by 23-12-1948. The land is attached'.
The order shows that the Magistrate had applied his mind to the materials and was satisfied of the existence of an apprehension of breach of the peace; and the order seems to be a substantial compliance with the provisions of Section 145, even though a formal order under Sub-section (1) was not drawn up. The considerations therefore, which prevailed with Das J. were entirely different from the present circumstances.
7. In this view of the matter, the present case being on all fours with the three decisions that I have relied upon in the earlier part of the judgment, I would respectfully follow the view expressed in those decisions, and quash the proceedings under Section 145, and set aside the order, under revision. I will also observe, as it was observed in -- 'A. I. R. 1930 Cal 715 (A)', that this order will be without prejudice to the making of any fresh order if this or any other Magistrate is satisfied that there is a likelihood of any breach of the peace existing at the time when the matter comes before him.
8. The revision is allowed and the rule is madeabsolute in the above terms.