1. This is an application by Ramchandra and three others of village Sakat Tehsil Rajgarh to revise the order of Shri Naina Nand Jain, Magistrate first class, Raj Garb, under Section 145, Criminal P. C.
2. The opposite party Bhalron Bux (hereinafter to be referred to as the complainant) filed an application under Section 145, Criminal P. C. that he secured from Tehsil Rajgarh a decree for possession of land No, 1875/314 on 17-4-1949 and was put in possession of the same on 23-4-1949. Thereafter he gave the land on 'Batai' to Raghunath and Gangli. When they went on 18-7-1949 to plough the land, they were driven out by Ram Chandra and others (hereinafter to be referred to as the applicants) by threat and show of force. It was, therefore, prayed that the land might be taken in possession of the Court and the applicants be bound to keep the peace and possession might then be restored to the complainant. The matter was referred to Police, who reported on 22-7-1949 that the applicants were in possession and there was no imminent danger of peace. On 25-10-1949, the learned Magistrate to whom the case came after having wandered through some other Courts made the following order on 25-10-1949:
Prima facie, there is apprehension of an offence to the petitioner. Therefore, a notice be issued to the opposite party under Section 145(3) to show cause why they should not be called upon to furnish surety in the sum of Rs. 500/- and execute personal bonds in the like sum to keep the peace for a period of one year. The opposite party should personally attend the Court on 8-11-1949 and file whatever objections they have.
3. It would thus appear that although in the order Section 145(3) is mentioned yet it is in reality an order under Section 112, Criminal P. C. The learned Magistrate proceeded upon this order and after notice to the parties finally made an order that the complainant was in possession of the property and his possession be maintained over it till ejected in due course of law.
4. Against the above order, the applicants went in revision to the Court of the Sessions Judge, Alwar, but their revision has been dismissed. They have come in revision to this Court.
5. The order of the learned Magistrate has been attacked mainly on two, grounds (1) that he did not make any preliminary order as required by Section 145(1), Criminal P. C. Such an order should state the grounds of the Magistrate's being satisfied that a dispute likely to cause a breach of peace, exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction and should require the parties concerned in such dispute, to attend the Magistrate's Court in person or by pleader within a time to be fixed by the Magistrate to put any written statement of their respective claims as respects the fact of actual possession of the subject of dispute. (2) That the Magistrate without finding that the complainant was in possession of the property in dispute within two months next before the date of the preliminary order has ordered that the possession of the complainant be maintained.
6. The learned Counsel for the applicants has argued that a preliminary order in terms of Section 145(1) is imperative to give the Court Jurisdiction under the said section. Unless such an order is made all the proceedings are void. He has relied upon - 'Bisram v. Kamta Prashad' AIR 1945 Oudh 62 (A) and 'Dr. A. Meah v. Steel Brothers and Co. Ltd.' AIR 1938 Rang 229 (B). In the Oudh ruling, it was held that Section 145(1) requires the Magistrate to make an order in writing stating the grounds of his being satisfied that a dispute likely to cause a breach of peace exists. Omission by the Magistrate to state the grounds of his being satisfied as to the existence of the apprehension of the breach of peace vitiates subsequent proceedings. In the Rangoon Ruling, it was held that the Magistrate when making an order on an application under Section 145 must comply with the provisions of Section 145(1) of the Code and he must make an order in writing stating the grounds of his being satisfied that a dispute likely to cause a breach of the peace existed. Where there are actually no grounds whatever of the Magistrate being so satisfied in view of the facts and there is a failure on his part to comply with the provisions of Section 145(1) of the Code, the whole proceedings before the Magistrate are vitiated and are rendered illegal as being without jurisdiction.
7. In answer to the contention of the applicants, the learned Counsel for the complainant has cited a ruling reported in - 'Shibnarayan Das v. Satya Deo Prasad' AIR 1943 Pat 44 (C) in which it was held that a Magistrate has no jurisdiction to institute a proceeding under Section 145 if there is no material at all on the record. But when there is some material on the record, it is entirely for the Magistrate to decide whether that material is sufficient or not to justify initiation of proceedings under Section 145. The High 'Court in revision cannot go into the sufficiency or otherwise of that material. The revisional powers OS High Court under Section 439 are discretionary and are exercised for the ends of justice. Where a party allows the order initiating the proceedings under Section 145 to go unchallenged by not coming up in revision against it and chooses to wait and take the chance of Judgment in his favour, he cannot in revision against the final order be heard to complain of excess of jurisdiction in the initiation of proceedings by the Magistrate under Section 145 when the final order has gone against him.
8. I have considered the arguments of both the learned Counsel for both the parties on this point and have also perused the ruling. To my mind, the ruling of Patna High Court has a bearing on this case only so far as the applicants did not come in revision after the order which is relied upon by the complainant as the preliminary order. However as I have said above, the order made by the learned Magistrate was in reality not at all an order under Section 145(1). No doubt it mentions Section 145(3), but a preliminary , order is not made under Section 145(3). It is made under Section 145(1). Sub-section 3 only provides for the service of the order and has nothing to do with the contents or other material of the order. It is obvious that in the order, it was not mentioned that dispute likely to cause a breach of peace existed about an immovables property or that the parties should put in written statements of their claims. It was also not mentioned as to what were the grounds of the learned Magistrate being satisfied.
9. The disputes about possession are primarily to be decided by the Civil Courts and criminal Courts have jurisdiction in such matters only when there is an apprehension of the breach of peace. The law has, therefore, laid down that certain conditions should be fulfilled before Magistrate proceeds under Section 145, Criminal P. C. To my mind, unless a preliminary order is made at least in substance under Section 145(1), the Magistrate cannot proceed under Section 145. A preliminary order under Section 145 is the bed-rock upon which the jurisdiction of the Magistrate, in such cases is founded. If it is wanting the whole edifice is likely to collapse. I am, therefore, entirely at one with the view of Oudh Chief Court and Rangoon High Court propounded in the two rulings cited on behalf of the applicants.
10. The facts that the applicants did not come in revision to this Court soon after the allged preliminary order, does not debar them from taking this objection after the final decision of the case, as the Court acted without jurisdiction in the absence of a preliminary order under Section 145(1) and in such matters objection can be taken even after the final decision of the case, because no act of parties can confer jurisdiction on a Court which it does not possess.
11. Even apart from this I find that there was no material for the Magistrate to be satisfied that a dispute likely to cause breach of the peace existed concerning the plot in dispute. The Magistrate was not satisfied on the application & statements of the complainant & therefore, referred the matter to the police for report. The Police reported against the complainant and said that there was no danger of the breach of the peace. Under these circumstances, the learned Magistrate should have stayed his hands and referred the parties to Civil Court.
12. The order of the learned Magistrate is liable to be quashed on the first ground alone and, therefore, it is not necessary for me to discuss the second ground.
13. The application is allowed, the order of the learned Magistrate is set aside and it is ordered that the applicants shall be put in possession of the property. The complainant, if he so desires, can have the matter decided by Civil Court.
14. Before parting with this judgment, I may say that although the provisions of Section 143 are very old, yet more often than not number of cases come to this Court, in which, it is found that the Magistrates have acted against one imperative provision or the other of the said section. This necessitates quashing of the orders and so much public time and labour is unnecessarily wasted. The Magistrates shall do well if they do not feel shy in placing the pages of the Code of Criminal Procedure containing Section 145 wide open before them, when they take action under the said section. This would save a good deal of time and labour which is at present very often wasted.