(1) This petition has come up in consequence of an order made by the Addl. Sessions Judge, Delhi on the 17th November, 1972 in exercise of the jurisdiction given by section 438 of the Criminal Procedure Code, hereafter called 'the Code'.
(2) The circumstances out of which it arises may be noticed. The petitioner and respondent No. 2 Amar Nath Gupta are residing in adjoining properties. On the 21st of June, 1971 a report was submitted by the police that there was a dispute between the petitioner and respondent Amar Nath Gupta in respect of a door pertaining to house No. 1980 in possession of the petitioner which opens towards Bhagirath Palace and that there was imminent apprehension of breach of peace. There was a recommendation in the police report that the door be sealed. On receiving the report, the concerned Sub Divisional Magistrate was to act in accordance with section 145 of the Code. The relevant provisions are sub-sections (1) and (4) of section 145 of the Code, which are:-
'S. 145(1). Whenever a District Magistrate, Sub Divisional Magistrate or Magistrate of the first class is satisfied from a police-report or other information that a 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, he shall make an order in writing, staling the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dies pute (and further requiring 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). (4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable within a period of two months from the date of the appearance of the parties before him and, if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein: Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: provided also that, if e Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision, under this section.'
(3) On the 25th June, 1971 having taken into consideration the police-report the Sub-Divisional Magistrate passed a composite order under sub-section (1) of section 145 and the ultimate proviso contained in sub-section (4) thereof. The proviso gave the jurisdiction to the Sub Divisional Magistrate that in case he considered the case one of emergency he may attach the subject matter of the dispute pending his final decision under section 145 of the Code. The afore-mentioned order was passed by the Sub Divisional Magistrate on the 5th day of his receiving the report and in the operative part with which this petition is concerned, he observed:-
'INorder to avoid imminent apprehension of breach of peace arising from the dispute this door is ordered to be attached, closed and sealed till the conclusion of the inquiry.'
(4) The petitioner felt aggrieved by the order directing that the door be attached, closed and sealed till the conclusion of the inquiry which the Sub Divisional Magistrate was to determine under section 145 of the Code. He filed a petition under sections 435/438 of the Code and by the order dated the 17th November, 1972, the Addl. Sessions Judge, Delhi, recommended that the order made by the Sub Divisional Magistrate directing that the door be attached. closed and sealed, be set aside.
(5) The learned Addl. Sessions Judge took the view that there was no dispute pertaining to the door as such and the petitioner was claiming a right to enter a public lane. In paragraph 5 of his order made under section 438 of the Code, the learned Addl. Sessions Judge concluded:-
'SUBJECTmatter of the dispute, thereforee, was the lane and not the door.'
After having heard Mr. D. N. Bhasin, in support of the order made by the Addl. Sessions Judge, who has given me valuable assistance and has taken me through the record, I am not persuaded that the dispute between the petitioner and respondent Amar Nath pertains to the public lane. The bone of contention between the parties was as to whether the petitioner could open the precise door or not and use the same. It is correct that the door can be used for entering the lane. I cannot, however, ignore that Mr. Bhasin has submitted that it can be used also for light and air. Be that as it may, it is to be seen whether the circumstances justify the exercise of the jurisdiction provided by section 439 of the Code.
(6) The ultimate proviso in sub-section (4) of section 145 of the Code gives a peculiar jurisdiction which is discretionary in nature and gives the power to the Magistrate that if he considers the case one of emergency he may at any time pending the final decision, direct the attachment of the subject matter of dispute. The subject matter of the dispute was the door. The Sub Divisional Magistrate exercised his discretion and considering that the case was one of emergency in order to prevent imminent breach of peace he directed that the door be closed, sealed and attached. I do not find that there is any warrant in section 439 of the Code normally to interfere with the exercise of such discretion by a trial court. There are enough of observations made by the Supreme Court in Alamohan Das and others v. The State of West Bengal, : 1970CriLJ860 and later in The Assistant Collector of Customs, Bombay and another v. L. R. Melwani and other, : 1970CriLJ885 , which support the view which I am taking. In the earlier case the Supreme Court was dealing with the scope of the revisional jurisdiction which the High Court may exercise under section 439 of the Code in respect of a commitment made under section 207(A) of the Code. In paragraph 7 of the judgment, the Supreme Court, observed:-
'THEHigh Court would be justified in exercising its revisional jurisdiction where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged, where there is no evidence on which the order of commitment could be made where there has been denial of a right to fair trial, where there is reason to think because of failure to comply with the rules of procedure or conditions precedent to initiation of criminal proceedings, where by ignoring the substantive law which constitutes the offence or misconception of evidence on matters of importance grave injustice has resulted, and on similar other grounds. '
(7) In the second case the Supreme Court was dealing with the jurisdiction provided by section 439 of the Code in respect of an order made by the trial court regarding the controversy whether a particular document be allowed to be summoned or not. The Supreme Court observed:-
'EXCEPTfor very good reasons the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning documents.'
(8) I am of the view that the ultimate proviso in sub-section (4) of section 145 of the Code provides exceptional discretion to the Magistrate. Where he considers that the case is one of emergency he is allowed at any time to exercise the discretion to attach the subject of dispute in order to prevent imminent apprehension of breach of peace. There is no sanction in section 439 of the Code to lightly interfere with such exercise of discretionary power.
(9) Declining the recommendation, the petition is dismissed. The Sub Divisional Magistrate will proceed in accordance with law.