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Baliarsimhuni Sanyasi Raju and ors. Vs. Gadagamma Venkatapathi - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in138Ind.Cas.68
AppellantBaliarsimhuni Sanyasi Raju and ors.
RespondentGadagamma Venkatapathi
Cases ReferredArumuga Qovindan v. Venkataaiibbier
Excerpt:
.....it obligatory on the magistrate to state in writing the grounds for his being satisfied that on account of the dispute in respect of lands there is a likelihood of a breach of the peace. the order is, to gay the least, perfunctory and there is no finding as to-the vital point to be considered by the sub-divisional magistrate in a proceeding like this. i fail to see how the learned sub-divisional magistrate omitted to observe the fundamental requisites laid down for a proceeding under section 145 of the code and how he thought fit to shirk his own responsibility in the matter and shelve it to a subordinate magistrate......judge. in view of these facts, i need hardly state that the whole procedure adopted by the sub-divisional magistrate is vitiated by the irregularities pointed out by the sessions judge. section 145, clause 1 makes it obligatory on the magistrate to state in writing the grounds for his being satisfied that on account of the dispute in respect of lands there is a likelihood of a breach of the peace. on passing such an order in writing he should require the parties concerned in such dispute to attend his court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. the further steps to be taken in connection with a petition put in under section 148 are also set forth in the clauses of this section. in the present.....
Judgment:
ORDER

Sundaram Chetty, J.

1. This is a reference by the Sessions Judge of Vizagapatam with a recommendation that the order of the Sub-Divisional Magistrate, Parvatipur, under b. 145, Criminal Procedure Code, dated 30th June, 1931, may be quashed as illegal and passed without jurisdiction. The facts of the case which led up to this reference have been clearly set forth in the order of the learned Sessions Judge. In view of these facts, I need hardly state that the whole procedure adopted by the Sub-Divisional Magistrate is vitiated by the irregularities pointed out by the Sessions Judge. Section 145, Clause 1 makes it obligatory on the Magistrate to state in writing the grounds for his being satisfied that on account of the dispute in respect of lands there is a likelihood of a breach of the peace. On passing such an order in writing he should require the parties concerned in such dispute to attend his court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. The further steps to be taken in connection with a petition put in under Section 148 are also set forth in the clauses of this section. In the present case the learned sub-Divisional Magistrate seems to have overlooked the-provisions of Clause 1 of the section as regards the preliminary order to be passed by him. Not only did he omit to observe these conditions but he seems to have completely transferred the function of making the investigation into the dispute to a Subordinate Magistrate whom he directed to make a local enquiry and submit a report. Section 148, Clause 1 of the Code, enables the Sub-Divisional Magistrate to direct a Subordinate Magistrate to make a local enquiry and furnish him with a report for his guidance in the trial of the petition. But under the guise of calling for such a report, he ought not to depute the Subordinate Magistrate for making the entire investigation, and avoid the necessity of taking any oral evidence which the parties may wish to adduce in support of their respective claims. What the learned Sub-Divisional Magistrate has done 2a this case seems, to my mad, to be an abuse of the power conferred on him by Section 148, Clause 1. It is clear from the final order of the Sub-Divisional Magistrate passed on 30th June, 1931 that he made no enquiry whatever after the receipt of the report from the Subordinate Magistrate. The order is, to gay the least, perfunctory and there is no finding as to-the vital point to be considered by the Sub-Divisional Magistrate in a proceeding like this. The enquiry should relate to the question of actual possession and not to the question of right to possession. There is no clear finding in the order of the Sub-Divisional Magistrate as to which party was in actual possession about the time of the receipt of information by him as to the existence of a dispute which was likely to cause breach of the peace. It has been held in a decision of this High Court reported as Arumuga Qovindan v. Venkataaiibbier 31 M. 82 : 17 M.L.J. 535 : 3 M.L.T. 108, that a Magistrate holding an enquiry as to possession under Section 145, Clause 4 of the Criminal Procedure Code, is bound to take the evidence himself and cannot delegate to a Subordinate Magistrate the duty of recording such evidence. Any order passed by him without himself taking any evidence and depending solely on the report of the Subordinate Magistrate, should be deemed to be one passed without jurisdiction, on the authority of the aforesaid decision. I fully endorse the remark of the learned Sessions Judge that the conduct of the Sub-Divisional Magistrate in dealing with the present case under Section 145, Criminal Procedure Code is altogether unsatisfactory. I fail to see how the learned Sub-Divisional Magistrate omitted to observe the fundamental requisites laid down for a proceeding under Section 145 of the Code and how he thought fit to shirk his own responsibility in the matter and shelve it to a Subordinate Magistrate. The order passed by the Sub-Divisional Magistrate is manifestly wrong and is one made without jurisdiction. It is accordingly set aside and his proceedings are quashed.


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