I.D. Dua, C.J.
(1) The learned Additional Sessions Judge, Delhi, has by his order dated 13th September, 1968 forwarded the record of the case Raghbir Singh v. Kamla Devi ect. initiated under section 145, Cr. P.O., at the instance of Raghbir Singh. The learned Additional Seasions Judge has recommended that the order of the learned Sub-Divisional Magistrate Shri V.N. Chaturvedi, dated 25th May, 1968 be set aside and the said learned Sub-Divisional Magistrate be directed to refer the matter of possession to the civil Court as envisaged by section 146, Cr. P.C.
(2) It appears that Raghbir Singh, by means of an application dated 7th March, 1968, under section 145, Cr. P.C. moved the Court of the learned Sub-Divisional Magistrate (Jama Masjid) Delhi complainging that Smt. Kamla Devi one of his neighbours, residing in house No. 433. Gali Pharwali, Chatta Lal Mian had on 6th February, 1968, with the active assistance and co-operation of 14 toher persons, who were made respondents by him in his application, had demolished the intervening wall of the verandah and taken unlawful possession of a part thereof in the presence of four persons Khazan Singh, Jamuna Das 0m Parkash and Swami Dass. A prayer was made to initiate proceedings under section 145, Cr. P.C. and to order possession to be restored to the applicant.
(3) The learned Sub-Divisional Magistrate, by his order dated 25th May, 1968, came to the conclusion that Raghbir Singh was proved to be in possession of the verandah in question on 6th February, 1968, and also prior to that date. He was accordingly held entitled to possession of the said verandah till evicted there from under due course of law. The Station House officer of Jama Masjid was directed to break open the seal and hand over possession to Raghbir Singh. The opinion on which this order was based, was formed by the learned Sub-Divisional Magistrate on the basis of the affidavits of the persons mentioned in the application under section 145 of the Code and also a on the report of the police Sub-Inspector and a phtoograph filed by Raghbir Singh.
(4) The learned Additional Sessions Judge has in a very well-reasoned and exhaustive order gone through the affidavits placed on the record and has come to the conclusion that they do nto establish that Raghbir Singh was in possession of the verandah in dispute on or prior to 6th February, 1968. The police report was considered by the learned Additional Sessions Judge to be biased because Raghbir Singh is a Head Constable and the Sub-Inspector had perhaps a soft corner for the applicant, whether consciously or unconsciously. The phtoograph on which the learned Sub-Divisional Magistrate had relied was found nto to have been proved by any body and there was ntohing on the record to connect the phtoograph with the property in question. In face of this state of the material on the record, the learned Additional Sessions Judge has observed that the case should be sent to the civil Court under section 146, Criminal Procedure Code
(5) Before me, the learned counsel for the respondents has tried to support the order of the Sub-Divisional Magistrate by relying on the affidavits of deponents in support of Raghbir Singh's application He has added that the phtoograph and the police report fully corroborate the sworn affidavits of Raghbir Singh, his wife and his four supporters. I am unable to sustain this submission,
(6) Section 145 of the Code, which deals with disputes as to immovable property, gives power to the District Magistrate, Sub Divisional Magistrate or a Magistrate of the 1st Class to make an order in writing, if he is satisfied from a police report or toher information that dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction. Such order should state the grounds of his being so satisfied and then require the parties concerned in such dispute to attend the Court within a period to be fixed and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. He is further to require 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. The nature of the enquiry which the Magistrate is called upon to hold is without reference to the merits or the claims of any such parties to a right to possess the subject of dispute and he is also enjoined to peruse the statements, documents and affidavits, if any, put in by the parties and then hear the parties and conclude the enquiry within two months from the date of the appearance of the parties. His decision is to be confined to the question whether any and which of the parties was. on the date of the preliminary order made on the basis of his satisfaction mentioned earlier, in possession of the subject-matter of the dispute. Any party dispossessed with in two months next before the aforesaid date is to be treated to be one in possession of the property on the date aforesaid. Now, the learned counsel for the respondents has nto chosen to draw my attention to any affidavit of Raghbir Singh's supporters which whould show that he was in possession on 6th February, 1968. His own affidavit and that of his wife have already certainly to be taken with a grain of salt. But this apart, the phtoograph placed on the record of which the learned SubDivisional Magistrate took ntoice has nto been shown to be connected with the premises in dispute, nor is the police report a document which can be taken into account by the Magistrate holding an enquiry under section 145 Cr. P.C. Such a report can only be taken ntoices of under section 145 in order to satisfy the Magistrate to take steps to prevent the likely breach of the peace.
(7) In view of the foregoing discussions, I have no option but to accept the recommendation of the learned Additional Sessions Judge and after setting aside the order of the learned Sub-Divisional Magistrate to send the case hack to that court for making suitable orders contemplated by section 146 of the Code, and I order accordingly.
(8) On behalf of the respondents, an application has been presented in this Court under section 428, Cr. P.C., for permission to lead additional evidence. This application seems to me to be misconceived because section 428 is in terms confined to appellate Courts and it is only when the appellate court is dealing with an appeal under Chapter Xxxi of the Code that it can take additional evidence under this section. But this apart, the learned Magistrate has to make an order oil the material placed before him under section 145, Cr. P.O., and such orders being summary in nature, are normally expected to be final. On this ground also, any scope for additional evidence in this Court on revision would perhaps be contrary to the policy of law. The respondent's prayer for additional evidence has, thereforee, to be disallowed.
(9) Before concluding, I should like to point out that the Magistrate dealing with proceedings under section 145, have to be careful in seeing that these proceedings are nto utilised by the parties for strengthening their claims in civil Courts and the order made under this section must be strictly confined within the limits prescribed therein. The order is a Judicial order and the Magistrate must decline to take ntoice of any extra-judicial fact which cannto be taken ntoice of by the language of section 145. The primary object of this section is prevention of breach of public peace arising in respect of a dispute relating to immovable property and the matter is settled temporarily so far as criminal Courts are concerned by maintaining status qua until civil courts determines the rights of the parties. When one of the parties before the learned Magistrate is a police officer, then he should be extra-care-ful to see that the manner in which he conducts the enquiry and comes to his determination, does nto give rise to a seeming bias or even to a reasonable apprehension of such a bias in favor of the police officer which may too readily be perceived by credulous people, particularly in areas where there is no separation of the Judiciary from the Executive. Confidence in our criminal judicial process'can be sustained and strengthened in the eyes of the people only if the Magistrates in such situations so behave that justice is nto only done but is also seen to be done.
(10) Parties are directed to appear before the learned Sub-Divisional Magistrate on 25th November 1968 when he would take appropriate steps without undue delay to make a reference as provided by Section 146, Cr. P.C.