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Ram NaraIn Sharma Vs. Mahesh NaraIn Sharma and the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 440 of 1980
Judge
Reported in20(1981)DLT80
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145 and 482
AppellantRam NaraIn Sharma
RespondentMahesh NaraIn Sharma and the State
Advocates: O.P. Dutta,; Vinod Dutta and; R.D. Mathur, Advs
Cases ReferredRaj Pati v. Bachan
Excerpt:
.....145 of the criminal procedure code, 1973 - the court ruled that the existence of apprehended breach of peace was a sine quo non for exercise of jurisdiction by the magistrate - also, the question whether to initiate the proceedings or not was in the discretion of the magistrate which he had to exercise on the basis of material before him - further, in exercise of inherent powers sufficiency of material before him could not be gone into the high court in its revisional or inherent jurisdiction. - - anand, sdm (kotwali) delhi, passed a preliminary order to the effect that it appeared to him from the complaint and statements of witnesses examined by police that apprehension of breach of peace existed and that thereforee the petitioner as well as respondent no. accepting the..........not go into the sufficiency or otherwise of the materials on the basis of which the satisfaction of a magistrate about the existence of apprehension of breach of peace is based. (13) the learned counsel for the petitioner contended that a civil litigation had started between the petitioner and respondent no. i and other and that thereforee there was hardly any justification for the continuance of the present proceedings. the learned counsel for respondent no. i, however, pointed out that the said civil litigation did not concern the baithak inquestion. in any case mere existence of civil litigation cannot be a bar to the continuance of the proceedings under section 145 of the new code. (14) for the foregoing reasons, i do not find any force in the present petition and dismiss the same......
Judgment:

G.R. Luthra, J.

(1) The present petition under Section 482 of the Code. of Criminal Procedure is for quashing proceedings under Section 145 of the Code of Criminal Procedure 1973 (herein after referred to as New Code) pending since November, 1977, in the Court of Sub Divisional Magistrate (Kotwali), Delhi.

(2) The dispute is with respect to the possession of a room, known as Baithak of property No. 2354-55 situated in Gali Dharampura, Delhi. Separate Municipal No. of that baithak is 2353.

(3) Ram Narain Sharma, petitioner married thrice. Respondent No. 1, Mahesh Narain, is son through first wife of the petitioner. The petitioner is living with his present wife and children from the wife in a house at Krishna Nagar, Near Shahdara.

(4) According to the petitioner he was in possession of the aforesaid baithak. On October 22, 1977, which happened to be the festival of Bharat Milap, the petitioner lodged a report at about 6.55 Pm, which was entered at No. 70 of daily diary at P.S. Kotwali, to the effect that his four sons namely respondent No. I and three others had taken forcible possession of the baithak. An enquiry was made by the police but the proceedings were dropped.

(5) On October 24, 1977, the respondent No. I brought a complaint before Sub Divisional Magistrate (Kotwali) Delhi, for starting proceedings under Sections 145 and 146 of the Code. He stated that he was in possession of the said baithak;-that on October 22, l977 he went to his office in the morning as usual and that when he came back at about 6.00 Pm he was informed that his father Ram Narain had taken possession of the baithak by way of breaking open the locks. He alleged that he protested to his father, that latter replied that he had already manipulated with the police and that police Was not going to help the former and that there was apprehension of breach of peace.

(6) On receipt of the aforesaid complaint the learned Sdm called for the report of the Sho (Kotwali) Delhi. One Sub-Inspector of Police was deputed to make an enquiry. The operative portion of his report dated October 31, 1977, reads as under :-

'THE room is, thereforee, no doubt disputed one. Both father and sons want to occupy it. Since it is a dispute between father and sons, there is no danger to the breach of peace at present. But in future it may be a cause of danger to the breach of peace'.

That report was forwarded to the learned Sdm by the Sho with the remarks that the possession of the baithak in dispute was with the present petitioner. The Sho also forwarded statements of four witnesses examined by the Sub-Inspector who had made the enquiry.

(7) On November 2, 1977, Shri B.L. Anand, Sdm (Kotwali) Delhi, passed a preliminary order to the effect that it appeared to him from the complaint and statements of witnesses examined by police that apprehension of breach of peace existed and that thereforee the petitioner as well as respondent No. I should file their written statement by November 14, 1977 regarding actual possession of the property in question. Written statements were filed. Each of them claimed to be inpossession. The proceedings went on.

(8) Petitioner made an application on September 3, 1979, for dropping further proceedings as there was no apprehension of breach of peace. That application was contested by the respondent who alleged that breach of peace still existed. thereforee, vide order dated September 3, 1979, the learned Sdm called the report of the SHO. The report of the Sho which is dated September 10, 1979 was received and reads as under :

'NO breach of peace exists between the parties, nor there is any likelihood of the same. The proceedings under Sections 145 Cr.P.C. may now be dropped.'

On November 8, 1979, after hearing both the parties, the learned Sdm passed an order to the effect that he was convinced that an apprehension of breach of peace existed despite the negative report of the Sho and that proceedings under Section 145 of the Code would continue. There was some notes of hearing afterwards and ultimately the present petition was brought.

(9) The learned counsel for the petitioner contends that the very foundation on which the edifice of proceedings under Section 145 of the Code would be built is existence of apprehension of breach of peace, that in the present case, such an apprehension neither existed at the time of the preliminary order not at any time thereafter and that thereforee it was wrong on the part of the learned Sdm to have refused to drop the proceedings when an application under Sub-section 5 of Section 145 of the Code was made by the petitioner. He relied upon a number of authorities. In Nika v. Aka, 1964 Plr 245 Punjab High Court has expressed the view that imminence of breach of peace is an essential pre-requisite for action which is to be taken by a magistrate under Section 145 of the Code of Criminal Procedure Code, 1898, (hereinafter referred to as the Old Code). ln Ganga Singh v.Raj Bahadur Singh, : AIR1958All803 , Division Bench of Allahabad High Court held that under Section 145(5) of the Old Code a magistrate had the jurisdiction to cancel the preliminary order, that in that case he was justified to do so on the basis of the statement of the applicant himself to the effect that no quarrel regarding the possession of the disputed premises had taken place and that there was no apprehension of breach of peace. In Bhinka & Ors. v. Charan Singh, : 1959CriLJ1223 it is laid down that the foundation of jurisdiction of a magistrate under Section 145 of the Old Code is the existence of apprehension of the breach of the peace. Similar view was expressed by Madhya Pradesh High Court, in State of Madhya Pnadesh v. Sitaram Viswanath & Ors., 1968 Cr.L.J. 1802. In Anis-ul-Rehman v. Aziz-ul- Rehman, 1975 (11) Dlt 21 the following was held :

'THAT in this case the parties to the litigation had gone to the Civil Courts asserting their respective rights and had moved appropriate applications on which in one case the direction was that status-quo should be maintained and in the suit filed by the respondent to this petition the Civil Court granted an interim injunction restraining the present petitioners from interfering with the possession of the disputed roof till the disposal of the suit. In the circumstances prevailing between the parties, there could not be any apprehension of breach of peace. Accepting the recommendation, the proceedings initiated under Section 145 of the Code are hereby quashed'.

The learned counsel pointed out that in the present case report of Sub Inspector Police dated October 31, 1977 (operatic portion reproduced already) was clearly to the effect that since there was a dispute between father and sons there was no danger to the breach of peace at the present, that notwithstanding that report the learned Sdm passed the preliminary order and that hence that order was without foundation. The learned counsel further pointed out that even report dated September 10, 1979 of Sho was to the effect that there was no likelihood of breach of peace. The learned counsel emphasised that in these circumstances, the very commencement and continuance of the proceedings by the learned Sdm was without jurisdiction and illegal ' and that thereforee this Court in the ends of justice should exercise inherent powers for quashing the same.

(10) The aforesaid authorities were under the provisions of Section 145 of the Old but provisions of New Code are practically the same. In view of the said authorities there is no doubt that satisfaction about the existence of apprehension of breach of peace is a sine qua non of exercise of jurisdiction under Section 145 of the New Code by a magistrate.

(11) Yet, it is to be seen as to when inherent powers of High Court should normally be exercised for setting aside a preliminary order passed by a magistrate or for quashing the proceedings under Section 145 of the New Code by him. Supreme Court in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , inter alia, laid down that inherent powers of the High Court should be exercised very sparingly to prevent abuse of the process of High Court or otherwise to secure the ends of justice. thereforee, a question arises if this is an extra ordinary case where this court should take upon himself to interfere otherwise there will be gross injustice. No doubt, Sub Inspector Police in his report dated October 31, 1977, remarked that according to him there was no present danger to peace but he also stated that there was likelihood of breach of peace in the future. That clearly indicates that he was entertaining an apprehension of breach of peace. That alone coupled with the complaint of respondent No. I could be a basis for the satisfaction of the learned Sdm as to the existence of the apprehension of breach of peace.

(12) Then learned Sdm was not duty bound to act upon report to the Sho dated September, 1978-1979 that no apprehension of breach of peace existed. He heard the arguments of parties fully and still expressed the view that such an apprehension did exist. In R.H. Bhutani v. Miss Man J. Desai and others, : 1969CriLJ13 the Supreme Court held as follows:-

'THE satisfaction under sub-section (1) of S. 145 is of the Magistrate. The question whether on the materials before him he should initiate proceedings or not is thereforee, in his discretion which, no doubt has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, thereforee, be laid down as to the sufficiency of material for his satisfaction. The language of the sub-section is clear and unambiguous that he can arrive at his satisfaction both from the police report or 'from other information' which must include an application by the party dispossessed. The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate'.

Similar view was expressed by the Supreme Court in Raj Pati v. Bachan & Another 1980 Kar 265. thereforee, the view of the Supreme Court is that normally the High Court should not go into the sufficiency or otherwise of the materials on the basis of which the satisfaction of a magistrate about the existence of apprehension of breach of peace is based.

(13) The learned counsel for the petitioner contended that a civil litigation had started between the petitioner and respondent No. I and other and that thereforee there was hardly any justification for the continuance of the present proceedings. The learned counsel for respondent No. I, however, pointed out that the said civil litigation did not concern the baithak inquestion. In any case mere existence of civil litigation cannot be a bar to the continuance of the proceedings under Section 145 of the New Code.

(14) For the foregoing reasons, I do not find any force in the present petition and dismiss the same. A copy of this order Along with file be sent immediately. Parties should appear before the learned Sdm on April 29, 1981.


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