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Shankerlal and ors. Vs. Chaturbhuj - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Ref. No. 65 of 1957
Judge
Reported inAIR1958Raj351; 1958CriLJ1548
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145 and 403
AppellantShankerlal and ors.
RespondentChaturbhuj
Respondent Advocate Hastimal, Adv.
DispositionReference rejected
Cases ReferredTarini Charan Chowdhry v. Amulya Ratan Roy
Excerpt:
.....where these two conditions are satisfied at the time a fresh application under section 145 happens to be made, then i do not see how such an application can be resisted merely on the ground that an earlier application based on the same facts had been dismissed by the magistrate owing to default in appearance of the petitioner before him......situate in village undari, tehsil bali, and that there was a likelihood of a breach of the peace. the magistrate passed a preliminary order on the same date and called upon the parties to put in their respective claims as regards possession over the land in controversy.shankerlal and others resisted this application mainly on the ground that chaturbhuj had filed art earlier application in the same connection on 6-9-1956, which had been dismissed by the magistrate on 25-9-1956, and, therefore, a second application under section 145, cr. p. c., was incompetent. the magistrate after having recorded the evidence of both the parties came to the conclusion that possession of the opposite party chaturbhuj over the land in dispute was established at the date of the preliminary order, and.....
Judgment:
ORDER

I.N. Modi, J.

1. This is a reference by the Sessions Judge, Pali, in a proceeding under Section 145, Cr. P. C., and arises under the following circumstances.

2. It appears that opposite party Chaturbhuj made an application on 22-10-1956, in the Court of the Sub-Divisional Magistrate, Bali, alleging that Shankerlal and others (who are petitioners in this Court but were opposite parties in the Court of the Magistrate) were bent upon interfering with the possession of the former over certain land, which was described in the application, situate in village Undari, Tehsil Bali, and that there was a likelihood of a breach of the peace. The Magistrate passed a preliminary order on the same date and called upon the parties to put in their respective claims as regards possession over the land in controversy.

Shankerlal and others resisted this application mainly on the ground that Chaturbhuj had filed art earlier application in the same connection on 6-9-1956, which had been dismissed by the Magistrate on 25-9-1956, and, therefore, a second application under Section 145, Cr. P. C., was incompetent. The Magistrate after having recorded the evidence of both the parties came to the conclusion that possession of the opposite party Chaturbhuj over the land in dispute was established at the date of the preliminary order, and in that view he declared him to be in possession of the land in dispute and forbade the present petitioners from interfering with such possession until Chaturbhuj was evicted therefrom in due course of law.

Before proceeding further, it may be pointed out that the application dated 6-9-1956, was dismissed on 25-9-1956, because Chaturbhuj had defaulted in appearance on that date. The ground relating to the non-maintainability of the second application has found favour with the learned Sessions Judge, and, consequently, he came to the conclusion that Chaturbhuj's, second application on the same facts was incompetent and he has, therefore, made the present reference with a recommendation that the order of the Magistrate was illegal and should be set aside.

3. Mr. Hastimal has appeared in this Court on behalf of the opposite party Chaturbhuj to oppose the reference. The petitioner Shankerlal and others have not entered appearance in this Court. I have carefully perused the record and considered the question of law raised by the learned Sessions Judge, and have come to the conclusion that there is no force in this reference, and it must be rejected.

4. The only question for determination before me is whether, where a first application under Section 145, Cr. P. C., has been dismissed for default, a second application is competent. The view of the learned Sessions Judge is that such an application is not competent though he has tried to qualify his opinion by saying that this would be the result where the second application is granted on the same facts.' The learned Judge has placed his reliance on Ghulam Muhd. v. Crown, AIR 1923 Lah 81 (1) (A), which in its turnseeks to follow Tarini Charan Chowdhry v. Amulya Ratan Roy, ILR 20 Cal 867 (B). I have considered these authorities and have formed the opinion that these cases have no application whatever to the case before me.

In the Lahore case (A) the facts were that the petitioner having made an application under Section 145,Cr. P. C., before the Magistrate, a preliminary order was passed on 8-4-1921. On the 20th May, the parties appeared before the Magistrate and stated that the dispute had been referred to arbitration, and, therefore, they did not wish to proceed further in the matter. Consequently, the Magistrate passed an order consigning the case to the record room. On 1-7-1921, the petitioner then made another application under Section 145 and this was treated by the Magistrate as a continuation of the previous application and was made the basis of the final order. When the matter went to the High Court, it was held that proceedings under Section 145 could not be renewed alter the dispute had been settled and an order was made that the case be struck off and that a new proceeding would not be justified only on the materials upon which the proceedings which had already been struck off was passed. It is clear from the report of this case that what the Magistrate did was to have treated the second application as a continuation of the first. In the present case the opposite party came to file a second application which was not a mere continuation of the first. A perusal of the Lahore case further shows that the learned Chief Justice in that case never went to the length of holding that a fresh application would not He at all.

All that he said was that if the second application was treated as a fresh application, then too it would fail in the circumstances of that case inasmuch as the petitioner was not in possession within two months of the date of the preliminary order. Further, the learned Chief Justice also held that there was no likelihood of a breach of the peace in that case. In these circumstances, I have no hesitation in saying that the Lahore case is entirely distinguishable on facts.

5. Reliance was placed in the Lahore case on ILR 20 Cal 867 (B). Briefly, the facts in that case were that proceedings were started under Section 145, Cr. P. C., on 17-5-1892. The case went on for some time when the parties applied in Court to say that they would not go upon the land in dispute until the matter was settled either under the provisions of the Survey Act or by arbitration. The Magistrate thereupon ordered that the proceedings be struck off. It transpired that the proposed arbitration fell through, whereupon a new application was made by one of the parties upon which the Magistrate made an order on 23-9-1892, 'the result of which was that the inquiry way recommenced in October, 1892, and the Magistrate relied upon a report of the Sub-Inspector concerned made in the preceding April that there was an apprehension of a breach of the peace.

It was held by the Calcutta High Court that the Magistrate was not right, in October, in acting only upon a report made in the previous April when the likelihood of a breach of the peace which was referred to in that report must have passed away, and in that view the High Court set aside the order passed by the Magistrate. What is important to observe in this case is that the learned Judges who decided the case themselves stated towards the end of their judgment that the setting aside of these proceeding may only lead to the institution of a fresh proceeding but that that was a matter for the Magistrate to determine having regard to the question whether at the moment the fresh proceeding was commenced there was or was not a likelihood of a breach of the peace.

This, to my mind, clearly shows that the cases discussed above and upon which reliance seems to have been placed by the learned Sessions Judge in coming to the conclusion to which he did do not establish that where a first application under Section 145 has been dismissed for default, a second application under the same section would on that ground alone be incompetent.

6. The whole matter, as I look at it, resolves itself to this. The simple test would always be whether the basic conditions of Section 145, Cr. P. C. are fulfilled at the time a fresh application under Section 145 is moved before the Magistrate concerned. These conditions are mainly two. The first is whether there is a dispute about land or water or boundaries thereof, and secondly, whether such dispute is likely to cause a breach of the peace.

Where these two conditions are satisfied at the time a fresh application under Section 145 happens to be made, then I do not see how such an application can be resisted merely on the ground that an earlier application based on the same facts had been dismissed by the Magistrate owing to default in appearance of the petitioner before him. It may also be pointed out in this connection that Section 403, Cr. P. C., does not enact a bar in the way of a second application being filed under Section 145 as proceedings under that section do not constitute a trial within the meaning of the former section.

7. I therefore hold that on the view, which I have felt persuaded to accept as discussed above, the second application moved by the opposite party Chaturbhuj was competent, and the Magistrate had jurisdiction to take cognizance of it and dispose of it in accordance with law as laid down in Section 145.

8. I may also add in this connection that Section 145 is enacted to deal with and settle certain disputes relating to land or water in the interest of public peace, and also lays down the conditions in which such a proceeding, if once commenced, can be dropped. Such a contingency would arise where the Magistrate comes to the conclusion that there is no apprehension of a breach of the peace. See Sub-section (5) of Section 145, Cr. P. C. The section, is to my mind a self-contained one, and the procedure envisaged in the section does not contemplate the dismissal of an application under that section for default.

9. Having regard to this aspect of the matter and also having regard to the paramount consideration behind Section 145, namely, that it is designed to prevent a breach of the public peace and temporarily settle disputes as to possession and to maintain the status quo until the rights of the parties are decided by a competent Court, I am inclined to entertain the view that there is nothing in the Code of Criminal Procedure which precludes an applicant whose application under Section 145 has been dismissed simply owing to his default in appearance from filing a fresh application under Section 145, founded on the same facts, provided of course his second application has been filed within two months of the alleged deprivation of possession or threat thereto relied on in the first application, and otherwise fulfils the basic conditions laid down in that section. I hold accordingly. So far as the merits of the order passed by the Magistrate go, even the learned Sessions Judge appears to have formed the opinion that the order of the Magistrate was correct and does not call for any interference.

10. On the view which I have formed as to the competence of the second application filed by Chaturbhuj, this reference has no force and I hereby reject it.


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