1. This is a reference made by the learned Sessions Judge of Kottyarn in a revision before him concerning a proceeding initiated under Section 145, Criminal Procedure Code, by the Division First Class Magistrate of Kottayam in M. C. 3 of 1951. On the day previous to the date tile counter-petitioners thereto had to file their written statements. The learned Magistrate passed the following order:
The subject of dispute in this case is 14 cents of land in Thoppil Purayidom in Madappally Kara of Madappally Pakuthy. There was a clash between the 1st petitioner and the counter-petitioners on this land on the 13th April 1950 in which people on either side sustained injuries. On that incident two cases, each counter to the other were charge-sheeted by the police before this Court (C. C. 237 and 240 of 1950). While these cases were pending trial the V police reported action under Section 143, Cri. P. C. in respect of the land so as to avoid further clash between the parties. Accordingly the preliminary order in this case was issued on 27-1-1951 and the property was attached and taken possession of by the receiver in the presence of both parties on 30-1-1951. The petitioners have filed their written statement already and the case stands for the written statement of the counter-petitioners. The 2nd petitioner was examined as P. W. 8 in C. C. 240/50.
C. C. Nos. 237 & 240 have since been disposed of: Evidence regarding possession was let in by the parties in both the cases. The petitioner's case is that the disputed land forms part of S. No. 841/6 obtained in a court delivery, while the counter-petitioner's case is that it is S. No. 841/7 H. 13 obtained by a sale deed in his favour. It is admitted by both parties that the petitioners are in possession of S. No. 841/6 and the counter-petitioners in possession of S. No. 841/7 H. 13 and that there is no dispute between the parties on this point.
It has been found in the above cases that it is not possible to decide as to whether the disputed plot lies in S. No. 841/6 or 841/7 and therefore not possible to decide as to which of the two parties was in possession of the disputed plot on the date of the disturbance unless the boundaries of the survey fields are refixed on the ground under the provisions of the Survey and Boundaries Act. As the question has thus been decided it is unnecessary to proceed further with this case. The parties are accordingly directed to take steps to fix the limits of their holdings on the ground. When this is done any portion of the disputed land which comes within S. No. 841/6 will be handed over to the 1st petitioner and any portion which comes within S. No. 841/7 H 13 will be handed over to the counter petitioner. Till then the disputed plot will continue under attachment.
2. Feeling aggrieved by this order the petitioner before the learned Magistrate moved a petition requesting the Magistrate to proceed with the enquiry after accepting the written statements from the counter-petitioners. But this petition was dismissed. The learned Magistrate observed that final orders have already been passed in the case on 2-3-1951 (referring to the order quoted above) and that he was therefore incompetent to re-open the matter. This was on 15-3-1952. It was after this that the petitioner moved the Sessions Court to revise the two -orders passed by the learned Magistrate (the order dated 2-3-1951 and the order dated 15-3-1952).
While admitting the revision the learned Sessions Judge issued notice to the counter-petitioners as also to the Public Prosecutor. After due hearing of all the interested parties and the Public Prosecutor the learned Sessions Judge passed the order under reference on 20-5-1952. The opening paragraph of the order re-capitulates the circumstances which led to the revision petition. The second and the third paragraphs read as follows:
After hearing counsel on both sides and the learned Public Prosecutor on whom notice had been served. I am satisfied that the order passed by the lower court is one not contemplated by law and is illegal. The procedure for an enquiry under Section 145 has been prescribed by the Section itself, and the learned Magistrate had to proceed to a final determination unless he acted under Sub-section 5 of Section 145. The learned Public Executor contended, that whatever be the language employed by the Magistrate, his order would fall under Sub-section 5, enabling him to cancel his preliminary order and stay all further proceedings, but I am clear that this is not the scope or the intendment of the order passed.
The learned Magistrate did not at all feel, that there was no dispute likely to cause a breach of the peace; on the contrary, he directed the attachment to continue. This is inconsistent with the exercise of the jurisdiction under Sub-section 5, nor is this a case falling under Section 146, where the Magistrate is unable to satisfy himself as to which party was in possession. That can be only after the enquiry is completed. In this ease, the posting was for the written statement only. I do not think, that the Magistrate was warranted in advising the parties to have a survey conducted in accordance with the Survey and Boundaries Act. I am therefore of the view, that the order passed by the Magistrate cannot be supported, and that it has to be set aside and the case sent back for disposal in accordance with law. I have therefore to make the above report to the Honourable High Court.
3. When this reference came up before us we directed notice to me parties as also to the State. At the hearing the petitioner was not represented before us. Mr. N.K. (sic)Job, who appeared for the counter-petitioners and Mr. N. Kumarun Achan who represented the State, supported the order passed by the Division First Class Magistrate. In other words, in their view, the opinion expressed by the learned Sessions Judge in his order of reference was wrong. We regret we cannot accede to their contention.
4. It is difficult to comprehend under what provision of Ch. 12 of the Code of Criminal Procedure the learned Division First Class Magistrate passed his order of 2-3-l951. Before the Sessions Court, the Public Prosecutor contended that it must be taken to be one passed under Sub-section (5) of Section 145; but as pointed out by the learned Sessions Judge that position is untenable. The learned Magistrate was not satisfied that there was no longer any apprehension of a breach of the peace when he passed the impugned order. On the other hand the order clearly indicates that the apprehension continued. He has allowed the attachment to remain in force until a decision is obtained under the Survey and Boundaries Act. In this Court Mr. Kumaran Achan did not say that the order fell under Sub-section (5). He appeared to us to be suggesting that the order was made under Sub-section (1) of Section 146. That is equally untenable.
It is open to a Magistrate to take action under Section 148 only on the completion of the enquiry initiated under Section 145 and in the event of his coming to the conclusion that neither party was in possession or that he cannot satisfy himself as to which party was in possession. The doubt on which a Magistrate can act under Section 146 must arise from his inability to decide on evidence offered by the contending parties as to their possession and not on a doubt entertained without such enquiry. Decided cases go to the extent of holding that unless and until a Magistrate has made the enquiry contemplated by Section 145, that is to say, unless he has received and considered the evidence produced before him by the parties, the Magistrate has no jurisdiction to proceed under Section 146. See Sohoni's Criminal Procedure Code (1941 Edition) pp. 259 and 280, Mitra's Criminal Procedure Code (1949 Edition) Vol. 1 page 382 paragraph 451 and the decision in - Badha Raman v. Emperor AIR 1936 All 177 (A).
5. The learned Magistrate was holding a judicial enquiry but in performing that judicious function he would appear to have been more executive minded than the executive itself. The case stood posted to 3-3-1951 for receiving the written statements of the counter-petitioners, but the impugned order was passed on the previous day and that without notice to the parties and without hearing them. The Magistrate was also not justified in referring to the evidence and the decisions in C. C. Nos. 237 and 240 to dispose of the proceeding under Ch. 12. C. C. Nos. 237 and 240 were State prosecutions.
As an enquiry under Ch. 12 is of a quasi civil nature, with the consent of the parties, it might perhaps have been open to the Magistrate to treat the evidence in those cases as evidence in the proceeding. However the use the learned Magistrate made of his knowledge about those cases in the present enquiry is something for which no sanction or warrant can be found in the Criminal Procedure Code or the Evidence Act or any other enactment we are aware of. The order dated 2-3-51 is a thoroughly illegal order and it was made without jurisdiction. It has therefore to be set aside.
6. The learned Public Prosecutor told us that by his order dated 2-3-'5i the Magistrate contemplated a further order. The second order the Magistrate passed on 15-3-1952 however belies that position. All that the Magistrate contemplated by the words employed by him in the concluding part of his first order was that the attachment would cease with the decision under the Survey and Boundaries Act and that possession would be handed over to the successful party before the Revenue authorities.
7. Counsel for the counter-petitioners and the learned Public Prosecutor supported the order of the Magistrate on the strength of certain decided cases which say that the order of the Collector as to a land, under the Survey and Boundaries Act, is a determination by a competent court of the rights of the person entitled to the possession thereof within the meaning of Section 146, Criminal Procedure Code. It is unnecessary to quarrel with that proposition.
A decision under Section 24 of the Travancore Survey and Boundaries Act of 1094 as to a land can and has to be held to be an order of a competent court determining the person entitled to the possession of it as contemplated by Section 146. In each one of the cases cited there was a valid order under Section 148 made after due enquiry and the order under the Survey and Boundaries Act was made use of to determine the attachment effected under the section,
8. In - Ambler v. Sami Ahmed 37 Cal 331 (B) and in - Ram Ranbijaya Prasad v. Ram Prasad Gupta AIR 1939 Pat 348 (C) which were cited on behalf of the counter-petitioners there were orders under Section 146 (1) made after due enquiry and the question was whether the persons in whose favour decisions under the Survey and Boundaries Act were subsequently made could claim possession of the lands placed under attachment under Section 146(1). The question was answered in the affirmative. These decisions are of no avail here where no order under Section 146(1) has ever been made nor a decision under the Survey and Boundaries Act existed when the impugned order was passed.
In lending support to Mr. Job's contention the learned Public Prosecutor cited before us the decision in - Mt. Ram Sri v. Sri Kishun AIR 1924 All, 777 CD). In that case also there was an order under Section 146, though that was passed at the request of the parties concerned. Boys, J. held that a person in whose favour a subsequent decision is made by the Revenue authorities in mutation proceedings can claim possession of the attached property. In other words that was held to be a decision of a competent court as to possession within the meaning of section 146.
9. It was stated at the Bar that since the order impugned was made, a decision under the Survey and Boundaries Act has been made in favour of the counter-petitioners. We did not find any such order among the records of the case. Some plans made by the Village Officers which are found among the papers in the Receiver's file no doubt show that according to the Revenue records the disputed plot stands registered in the name of the counter-petitioners.
10. In the circumstances, notwithstanding the support the learned Public Prosecutor gave to the order of the Division First Class Magistrate which is impugned in this proceeding, we feel bound to uphold the learned Sessions Judge's view and accept his reference. The orders of the Division First Class Magistrate bearing the dates 2-3-1951 and 13-3-1952 are cancelled and the case is sent back to his court for disposal in accordance with law. He will receive the written statements of the counter-petitioners and proceed with the enquiry.
11. If a decision under the Survey and Boundaries Act has since intervened and with that the apprehension of a breach of the peace has disappeared, it is perfectly open to him to pass orders under Sub-section (o) of Section 145. On the other hand if even after such an order apprehension of a breach of the peace continues, it is up to him to accept the decision and pass an order under Sub-section (6) of Section 145 in favour of the party who was successful before the Revenue authorities. This was what was done in the case in - Mrs. Argles v. Chhail Behari AIR 1949 All 230 (E). If no decision under the Survey and Boundaries Act has been made, the only course open to the learned Magistrate is to proceed with and close the enquiry initiated by him in one of the modes recognised by the provisions of the Criminal Procedure Code in that behalf. The reference is answered as above,
12. To countenance the procedure adopted by the learned Division First Class Magistrate would be to hold that a proceeding initiated under Ch. 12, Criminal Procedure Code, can be disposed of by referring the parties to a competent court without any enquiry by the Magistrate himself. That, no doubt, is a good expedient to avoid laws' delays, but the law as it stands now does not sanction it.
13. Before concluding, we desire to point out that counsel for the counter-petitioners raised a point that the revision before the Sessions Court was filed long out of time. The revision was accepted by the learned Sessions Judge and it was filed there on 20-3-1952, within 5 days of the second order of the learned Magistrate. There is no statute prescribing a period of limitation for the exercise of a revisional jurisdiction. In a proper case a revision court will, entertain a petition filed after the conventional period of 3 months. Regard being had to the terms of Sections 435, 433 and 439 we feel bound to exercise our revisional jurisdiction when the learned Magistrate's order is found to be one passed without jurisdiction. Order accordingly.