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Donepudi Narasayya and anr. Vs. Chiguluri Venkiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1925Mad1252; (1925)49MLJ784
AppellantDonepudi Narasayya and anr.
RespondentChiguluri Venkiah and ors.
Cases ReferredMahalakshmi v. Subbarayadu
Excerpt:
.....and if the magistrate is satisfied that the likelihood of the breach of the peace either did not exist or that it has ceased to exist, it is the proper duty of the magistrate to drop proceedings undersection 145 and withdraw from interfering with the rights of parties in the property. it is the magistrate s duty to be satisfied that there is no breach of peace in his district. if he is so satisfied, it is not for a private party to object. the existence of this clause does not take away the power of the magistrate himself to drop proceedings if he is satisfied that there is no further likelihood of the breach of the peace. he must leave the parties to settle their rights in the manner they think best to do, in the meanwhile holding his hands......an opportunity being given to the parties to show the-existence of the likelihood of the breach of peace, a magistrate who has started proceedings undersection 145, criminal procedure code, cannot cancel or drop them. this does not seem to me to be the law at all, for, as pointed out inmahindra chandra nandi v. burada kanta chowdhry ilr (1903) c 112, where this very question was raised and considered, 'a party to a proceeding undersection 145 is not in the position of a plaintiff in a civil suit who has set the court in motion and has a right to require a decision upon the questions raised by him. if a magistrate either refuses to make an order undersub-section (1) of section 145, or having made such an order, subsequently cancels it on the ground that a dispute does not exist likely to.....
Judgment:
ORDER

Krishnan, J.

1. This is an application to revise certain proceedings passed by the Sub-divisional Magistrate, Masulipatam, in connection with an application filed by the petitioner asking the Magistrate to take action underSection 145 of the Criminal Procedure Code. The Magistrate stating that he was satisfied that there was a dispute likely to cause a breach of the peace passed a preliminary order underSection 145 and directed the parties to attend his Court and to file written statements of their respective claims as regards the possession of the subject-matter in dispute. At a subsequent stage, the Magistrate, became satisfied that there was no likelihood of a breach of the peace and he, therefore, dropped the proceedings and passed no orders underSection 145 regarding possession of the property.

2. The first point taken before me in revision is that the Magistrate was not entitled to drop proceedings without giving an opportunity to the petitioner to show by evidence that there was a likelihood of the breach of the peace and the Magistrate's conclusion that there was no likelihood of the breach of the peace from information received was incorrect. It is contended that, without an opportunity being given to the parties to show the-existence of the likelihood of the breach of peace, a Magistrate who has started proceedings underSection 145, Criminal Procedure Code, cannot cancel or drop them. This does not seem to me to be the law at all, for, as pointed out inMahindra Chandra Nandi v. Burada Kanta Chowdhry ILR (1903) C 112, where this very question was raised and considered, 'a party to a proceeding underSection 145 is not in the position of a plaintiff in a civil suit who has set the Court in motion and has a right to require a decision upon the questions raised by him. If a Magistrate either refuses to make an order underSub-section (1) of Section 145, or having made such an order, subsequently cancels it on the ground that a dispute does not exist likely to cause a breach of the peace, no private person has any status to contest the propriety of his refusal to make an enquiry into the question of possession.' It must be borne in mind that proceedings underSection 145 are not taken in the interests or private parties but for the preservation of the public peace and if the Magistrate is satisfied that the likelihood of the breach of the peace either did not exist or that it has ceased to exist, it is the proper duty of the Magistrate to drop proceedings underSection 145 and withdraw from interfering with the rights of parties in the property. The case in Manindra Chandra Nandi v. Barada Kanta Chowdhry ILR (1902) C 112 in which this very question was raised and decided by a Bench of that Court Calcutta High--Court is against the contention now raised by the petitioner. That ruling has been followed in this Court by Spencer, J. in Suryanarayana v. Rajah Ankineed Prasad ILR (1924) M 713 and I am prepared to take the same view. I do not think it is open to a party to come up here and say that the Magistrate had no business to drop proceedings on the ground that there was no likelihood of a breach of the peace without giving him an opportunity to show that there was such a likelihood. It is the Magistrate s duty to be satisfied that there is no breach of peace in his district. If he is so satisfied, it is not for a private party to object. Clause (1922) 17 LW 429 ofSection 145 provides for a special case where as the Magistrate is proceeding with the trial of the question of possession, the parties to the proceedings or even other persons who are interested are given the right to show that no dispute likely to cause a breach of the peace exists or has existed. The existence of this clause does not take away the power of the Magistrate himself to drop proceedings if he is satisfied that there is no further likelihood of the breach of the peace. The first objection therefore fails.

3. The main point in the case however is as regards the order passed by the Magistrate about the deposit in Court. While the proceedings were going on in his Court the property seems to have been put under attachment and the crops seem to have been sold and certain moneys realised were deposited in Court. The Magistrate has passed an order directing the deposit to be given over in the main to the counter-petitioner excepting a small sum of Rs. 5-8-0 to be paid to the petitioner before me on proving his title. On this point it has been contended before me that, having dropped the proceedings underSection 145, the Magistrate is functus officio and has no jurisdiction to pass any further orders in the case. That contention is supported by two decided cases in this Court-Chenga Reddi v. Ramaswami Goundan (1914) ILW 1032 and Natesa Naicken v. Raghavachariar (1924) 20 LW 924. On the contrary, there is a case in Mahaldkshmi v. Subbarayadu (1922) 17 LW 429 which has been followed in Suryanarayana v. Rajah AnkiweedPrasad ILR (1924) M 713, which says that a Magistrate may pass orders directing that the income or profits obtained by sale of the crops on the land should be given over to the person who raised the crops or from whose possession the property was taken. As pointed out in Chenga Reddi v. Ramaswami Goundan (1914) 1 LW 1032 and Natesa Naicken v. Raghavachariar (1924) 20 LW 924 it is this very point that is in dispute in a proceeding underSection 145, as to who was in possession of the land, and, if the Magistrate is not going to make an enquiry to find out who was in such possession on the ground that there is no further likelihood of the breach of the peace and drops proceedings, it seems to me to be hardly correct for him to say that the sale proceeds of the crops should be handed over to the person who raised the crops. That means the Magistrate has to come to a conclusion as regards the very question that he is not going to consider. I am inclined to follow the rulings in Chenga Reddi v. Ramaswami Goundan (1914) 1 LW 1032 and Natesa Naicken v. Raghavachariar (1924) 20 LW 924 in preference to that in Mahalakshmi v. Subbarayadu (1922) 17 LW 429. I notice that in Mahalakshmi v. Subbarayadu (1922) 17 LW 429 the counter-petitioners were not represented and the order was in favour of the petitioner who apparently made out the crops had been taken from him. The Magistrate had directed that the money should be kept in deposit to enable the party entitled to it to get a decree of a Civil Court to show his title. It seems to me that that was the proper order in the case. I think it is not right for the Magistrate after having dropped the proceedings to make any further orders. He must leave the parties to settle their rights in the manner they think best to do, in the meanwhile holding his hands. In this case, therefore, I set aside the order of the Magistrate directing payment of the money deposited to the counter-petitioner. The money will be kept in deposit in Court till one or other of the parties produces a decree of a Civil Court to show his right to that money, and, on the production of such a decree the money will be paid to the party entitled to it.

4. With this variation the petition must be dismissed.


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