1. After trying a case of murder, the Sessions Judge of Backer-gunge passed the following order:
The District Magistrate should at once direct proceedings to be taken under Chapter XII, Code of Criminal Procedure, in respect of immoveable property, possession of which is disputed between the Bhuttacharjees and Summadars of Baghda on the one hand and the Dasses of Goila on the other, to put an end to further breach of the peace between the parties.
2. What order was thereupon passed by the District Magistrate we have been unable to ascertain from the record or from the learned Counsel or pleaders who have represented the four parties to the proceedings taken. It, however, appears that a Police enquiry was ordered, and that thereupon the police represented that four sets of persons representing various titles and claims to possession, were in dispute regarding certain lands. The possession of these lands was, we may take it, in some degree the origin of the dispute out of which the trial held by the Sessions Judge arose. There is not a word, however, in that report regarding any breach of the peace being likely to ensue in consequence of any disputes between the four parties mentioned. The Deputy Magistrate, Babu P. K. Dutt, thereupon recorded a proceeding purporting to be under Section 145 of the Code of Criminal Procedure, stating that, according to the report, dated 6th July, submitted by Raj Manick Dutt, Sub-Inspector, station Gournuddy, he was satisfied that there was likelihood of a breach of the peace being committed by the parties referred to above, regarding the possession of certain lands described, and these parties, we may here mention, are the four parties set out in the Police report. After some postponements the matter proceeded to trial on written statements put in by the first, third and fourth parties and on evidence tendered. On the 4th of November the Deputy Magistrate considered it unnecessary 'to hear any evidence which the petitioners (the third and fourth parties) are willing to adduce as it is quite unnecessary to determine their possession.' He added: 'This proceeding will not prejudice their interests in future. The dispute being virtually between the second and the first party, I shall only see which of the two parties is in possession of the disputed land.' On the evidence so taken the Magistrate found the first party to be in possession.
3. The matter has been referred to us in revision by the Sessions Judge on the ground that the third and fourth parties should have been allowed to adduce evidence of their respective claims to possession. This reference has been contested at considerable length by Mr. Apcar, who appeared in support of the order of the Magistrate; the other parties were represented by pleaders of this Court.
4. It has been contended by Mr. Apcar that inasmuch as the evidence shows that there was probability of a breach of the peace between the first and the second parties alone in respect of the lands, the order of the Magistrate is correct, and he also relies upon the order of the Sessions Judge. Next, that the third and fourth parties, not being concerned in any dispute likely to be attended by such consequences, could not properly be made parties to a proceeding under Section 145, and would not be affected by any order such as that now under consideration as between those parties only. Lastly, that the proceedings were not contrary to law, and, if irregular, should be maintained because it does not appear that any such irregularity has occasioned a failure of justice in the terms of Section 537 of the Code of Criminal Procedure. In the course of the argument it was pointed out to the learned Counsel that although in the order of the Magistrate purporting to take action under Section 145, he relied on the Police report of the 6th of July, as satisfying him that a breach of the peace was likely between the parties in consequence of a dispute regarding possession of certain lands, that report is altogether silent on this matter; and we desired to hear him on the whole case, not merely on the grounds raised by the Sessions Judge in his reference, and whether in consequence of this the proceedings were not bad. Mr. Apcar has relied mainly on the case of Gour Mohun Majee v. Doollubh Majee 22 W.R. Cr. 81, under which authority he contends that the proceedings should not be set aside.
5. Sitting with Ghose, J., I had recently to consider all the judgments of this Court, including this case, under the Codes of 1861 and 1872 and the present Code, and we held in Dhanput Singh v. Chatterput Singh (ante, p. 153) that the substance of these cases is that a Magistrate is bound to satisfy himself, on grounds which are reasonable, that a breach of the peace is imminent in regard to a property of the description specified in Section 145, that a dispute likely to cause a breach of the peace exists concerning them, and that the grounds stated by him must be such as would satisfy a Court of revision, before which such a case may be brought by any of the parties concerned. In dealing with the case of Dhanput Singh v. Chatterput Singh (ante, p. 153) we had occasion to consider the case cited by Mr. Apcar. I doubted the correctness of the judgment of the learned Judges, and if that case had stood alone I should have felt obliged to refer the matter to a Full Bench, but I was relieved from this because I found that that case was not in accordance with other cases on the subject.
6. It is not sufficient that in the course of a trial it should appear from the statement of witnesses examined that a breach of the peace is likely to ensue in consequence of a dispute regarding certain lands. Before taking action, the Magistrate is bound to be satisfied from a Police report or other information on this point, and he is also bound to make an order in writing, stating the grounds of his being so satisfied, and this must be served on the parties to the dispute. Mr. Apcar contends that we should assume that the proceedings were instituted on information other than the Police report, that is, the order of the Sessions Judge referred to. But although this may have been the real origin of these proceedings, as it led to the Police report of the 6th July under some order of the District Magistrate not before us, it was not made the ground on which the Deputy Magistrate instituted proceedings under Section 145. It was not stated as the ground on which that Magistrate satisfied himself that a breach of the peace was likely to ensue between the parties. We may add that the fact that the Magistrate made those who are known as the third and fourth parties, parties to that proceeding, and they were not concerned in the Sessions trial, sufficiently shows this. The intention of the law seems to he not only that Magistrates should have sufficient grounds for proceeding under Section 145, hut that they should inform the parties concerned of the grounds on which they are proceeding. We may also observe that the Sessions Judge was not competent to order the Magistrate to take action under Section 145. He should rather have drawn the Magistrate's attention to the nature of the dispute in the trial before him, so that the Magistrate might exercise his own discretion whether proceedings under Section 145 were not necessary to settle matters, until they should have been regularly determined by a competent Civil Court. The record before us certainly does not show that the proceedings in June under Section 145 were based on the order of the Sessions Judge in a trial regarding a murder committed in Cheyt, that is, the previous March. Moreover, it by no means follows that a dispute of so serious a character in March was unabated in July, when the proceedings under Section 145 were initiated. In my opinion, proceedings under Section 145, initiated as the present proceedings have been, fall within the terms of Section 530 *, which declares that if a Magistrate, not being empowered by law in this behalf, makes an order under Chapter XII, Code of Criminal Procedure, that is, under Section 145, his proceedings shall be void. It seems somewhat anomalous that, as contended before us, although the third and fourth parties should he shut out in this case, because they are not involved in a dispute likely to lead to a breach of the peace concerning certain lands, of which they claim to be in possession, they should be made parties right up to the ultimate decision of the matter when the possession of another person should he declared, and that they should be told that this order has been passed without any prejudice to them, that is to say, that the Magistrate should declare that the first party is entitled to be retained in possession, and yet that any possession alleged by the third and fourth parties should not be disturbed. Having made these persons parties to the proceeding, if the Magistrate was satisfied that a breach of the peace was imminent concerning a dispute to possession of certain lands in which these parties were concerned, though they were not in the actual dispute, it seems to me that it would be impossible to exclude them from the ultimate decision of the case without very serious prejudice and interference with any possession which they might be able to establish. On this ground also--and this is the ground on which the Sessions Judge has referred this matter to us in revision--I should find myself unable to maintain the order of the Magistrate, and if other objections, already stated, had not proved fatal, I should have required evidence to he taken from these persons and proper orders to be passed thereon.
Ameer Ali, J.
7. I agree in discharging the order of the Deputy Magistrate on both the grounds.
* Irregularities which vitiate proceedings.
[Section 530: If any magistrate, not being empowered by law in this behalf, does any of the following things (namely):
(a) attaches and sells property under Section 88;
(b) issues a search-warrant for a letter in the Post-office, or a telegram in the Telegraph Department;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour;
(f) Cancels a bond to keep the peace;
(g) makes an order under Section 133 as to a local nuisance;
(h) prohibits under Section 143 the repetition or continuance of a public nuisance;
(i) issues an order under Section 144;
(j) makes an order under chapter xii;
(k) takes cognizance under Section 191, Clause (c), of an offence;
(1) passes a sentence under Section 349, on proceedings recorded by another magistrate;
(m) calls under Section 435, for proceedings;
(n) makes an order for maintenance;
(o) revises under Section 515, an order passed under Section 514;
(p) tries an offender;
(q) tries an offender summarily; or
(r) decides an appeal;
his proceedings shall be void.]