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Krishnappa Naidu and anr. Vs. Alamelu Ammal - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in36Ind.Cas.855
AppellantKrishnappa Naidu and anr.
RespondentAlamelu Ammal
Cases ReferredMarudanayakam Pillai v. Syed Mohammad Rowthen
Excerpt:
criminal procedure code (act v of 1898,), section 145 - order based on police report--interference by high court jurisdiction--charter act,(24 & 25 vic. c. 104), section 15--possession at date of order--finding not specific--order, construction of - .....of the order in his finding. but as the dispute between the parties was as to possession on that date and the magistrate was recording a finding under the section, i think it may very reasonably be taken that the possession he finds has reference to the date of the order. bach side was contending for its own possession not only on the date of the order but for sometime previous to it and also subsequently to it, the alleged possession being continuous. it was not the case of either side that possession had changed in the interval for at least 2 years; a finding, therefore, in general terms that possession was with the respondent necessarily includes a finding as to possession on the date of the order.5. it seems to me that a reasonable construction should be put upon the judgment of.....
Judgment:
ORDER

Krishnan, J.

1. The order sought to be revised is one under Section 145 of the Code of Criminal Procedure, whereby the Magistrate declared that the respondent Alamelu Ammal was in possession of certain land in dispute. It is argued that the Magistrate's order was without jurisdiction and should be set aside under Section 107 of the Government of India Act, which corresponds to Section 15 of the Charter Act now repealed, because (1) the Magistrate has not stated his grounds for thinking that a breach of the peace concerning this land was likely to occur and (2) the Magistrate has not found that the respondent was in possession with reference to the date of his first order under Section 145, Clause (1).

2. As regards the first objection, the copy of the order served on the petitioner shows that the Magistrate was satisfied as to the likelihood of the breach of the peace from the Police report; the order says so. I think this is a sufficient compliance with the section. If the Magistrate believes the Police report and acts on it, as he has done in this case, and that report shows that there was a dispute about the land in question and that it was likely to lead to a breach of the peace, he gets jurisdiction to take action under the section. It is not necessary for him to set out any further reasons. See the full Bench ruling in Khosh Mahomed Sirkar v Nazir Mahomed 33 C. k 352 : 9 C.W.N 1065 : 2 C.L.J. 259: 2 Cri. L.J. 637 which I respectfully follow. It is not for this Court to examine the reasons or be satisfied of the likelihood of the breach, but for the Magistrate under the section to be so satisfied and his order is final: see Clause (5). I, therefore, overrule the 1st objection.

3. With reference to the 2nd objection, assuming such an objection is one affecting the Magistrate's jurisdiction to pass the order, as held by my learned brother Seshagiri Aiyar, J., in Marudanayakam Pillai v. Syed Mohammad Rowthen 34 Ind. Csa. 329 I am of opinion that there is a finding in respondent's favour, though it is perhaps not as definite and clear as it should be. The Magistrate, after discussing the evidence as to possession adduced on either side, says that the evidence is weak on both sides but that the 'probability seems to be that the petitioner (i.e., the respondent) has been in possession.' He follows this up by declaring the petitioner to be in possession under Section 145 of the Code of Criminal' Procedure.

4. It is argued that this should not be taken as a finding as to possession with reference to the date of the order under Clause (1), which is what the Magistrate has to find under Clause (4). It is true the Magistrate does not expressly refer to the date of the order in his finding. But as the dispute between the parties was as to possession on that date and the Magistrate was recording a finding under the section, I think it may very reasonably be taken that the possession he finds has reference to the date of the order. Bach side was contending for its own possession not only on the date of the order but for sometime previous to it and also subsequently to it, the alleged possession being continuous. It was not the case of either side that possession had changed in the interval for at least 2 years; a finding, therefore, in general terms that possession was with the respondent necessarily includes a finding as to possession on the date of the order.

5. It seems to me that a reasonable construction should be put upon the judgment of the lower Court. The Magistrate, no doubt, should not interfere in a civil dispute unless there is a real danger of the breach of the peace occurring, but where there is such danger and he passes an order under the section to prevent it this Court should not be too astute to find reasons to set it aside, as the object of the order is to preserve peace and as the Legislature has clearly indicated its intention that the order should not be ordinarily interfered, with, by expressly excluding proceedings under Chapter XII from the scope of Section 435 of the Code of Criminal Procedure and thus from the revisional jurisdiction of this Court under the Code and as the party against whom the order is made has the remedy by way of suit to establish his right to the property in question. I, therefore, overrule this objection also.

6. There is no other objection urged, The petition for revision is dismissed with respondent's costs.


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