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

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in91Ind.Cas.399
AppellantDenepudi Narasayya and anr.
RespondentChiguluri Venkiah and ors.
Cases ReferredMahalakshmi v. Subbarayadu
Excerpt:
criminal procedure code, (act v of 1898), section 115, proceedings under - likelihood of breach of peace, absence of--procedure--proceedings dropped--notice to parties, whether necessary--order concerning disposal of property--jurisdiction of magistrate. - .....being given to the parties to show the existence of the likelihood of the breach of the peace, a magistrate who has started proceedings under section 145, cr.p.c., cannot cancel or drop them. this does not seem to me to be the law at all; for, as pointed out in manindra chandra nandi v. barada kanta chowdhury 6 c.w.n. 417, where this very question was raised and considered, 'a party to a proceeding under section 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 under sub 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.....
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 under Section 145 of the Cr.P.C.

2. The Magistrate stating that he was satisfied that there was a dispute likely to cause a breach of the peace, passed a preliminary order under Section 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 under Section 145 regarding possession of the property.

3. 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 the peace, a Magistrate who has started proceedings under Section 145, Cr.P.C., cannot cancel or drop them. This does not seem to me to be the law at all; for, as pointed out in Manindra Chandra Nandi v. Barada Kanta Chowdhury 6 C.W.N. 417, where this very question was raised and considered, 'a party to a proceeding under Section 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 under sub 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, in our opinion to contest the propriety of his refusal to make an enquiry into the question of possession.' It must be borne in mind that proceedings under Section 145 are not taken in the interests of 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, under Section 145 and withdraw from interfering with the, rights of the parties in the property. The case of Manindra Chandra Nandi v. Barada Kanta Chowdhury 6 C.W.N. 417 in which this vary question was raised and decided by a Bench of that Court Calcutta High Court is against the contention raised by the petitioner. That ruling has been followed in this Court by Spencer, Jin Gothipathi Suryanarayana v. Ankeneed Prad 25 Cr. L.J. 978 : (1924) A.L.R. (M) 795 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 the peace in his district. If he is so satisfied, it is not for a private party to object Clause (5) of Section 145 provides for a special case whereas the Magistrateis 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 This first objection, therefore, fails.

4. 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 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 under Section 145 the Magistrate is functus officio and has not jurisdiction to pass any further orders in the case. That contention is supported by two decided cases in this Court Chenga Reddi v. Ramswamy Goundan 16 Cr.L.J. 104, and Natesa Naicker v. Raghavachair : AIR1925Mad327 . On the contrary. There is a case in Gothipathi saryanarayana v. Ankeneed Prad (1924) A.I.R. (M) 795 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 froth whose possession the property was taken. As pointed out in Chenga Reddi v. Ramaswamy 1 L.W. 1032 : 16 Cr.L.J. 104, and Natesa Naicker v. Raghavachariar : AIR1925Mad327 . it is this very point that is in dispute in a proceeding under Section 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 that the Magistrate has to come to a conclusion as regards the very question that he is riot going to consider. I am inclined to follow the rulings in Chenga Reddi v. Ramaswamy 16 Cr.L.J. 104, and Nalesa Naicker v. Raghavachariar : AIR1925Mad327 , in preference to that in Mahalakshmi v. Subbarayadu A.I.R(1923). (M) 472 : 24 Cr. L.J. 783. I notice that in Mahalakshmi v. Subbarayadu 74 Ind. Cas. 447 : 17 L.W. 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 dropping 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 I such a decree the money will be paid to the party entitled to it.

5. With this variation the petition must be dismissed.


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