1. This provisional application is directed against the order of the Sub-Divisional Magistrate, Vishnupur, drawing up proceedings under Section 145, Criminal P.O. in respect of certain lands of Mouza Kanalpur, Police Station Sonamukhi; measuring about 62.80 acres. It appears from the reports of the Circle Officer, South, on the basis of which the proceedings were started, that the petitioners Turu Majni and others, who are Sonthals and men of the second party, obtained settlement of the lands in 1927, but after cultivating the lands for some years, they abandoned the lands and left the locality about 15 years ago, but about June 1951, they returned to the locality and took possession of some of the disputed lauds and cultivated some of them and erected huts in others. On 14-6-1951, the opposite party started proceedings under Section 144. Criminal P.C. and an order was issued under that section restraining the parties from entering the lands. But that order was dissolved on 16-8-1951 -- the Sub-Divisional Magistrate recording a finding that the second party, Sonthals ware in possession. Thereafter, However, on the application of the opposite party, who is the first party, proceedings under Section 145, Criminal P.C., were started after obtaining further reports from the Inspector of Police and the Circle Officer, South.
2. Two grounds were taken in the application for quashing the proceedings under Section 145. Criminal P.C. These grounds were also taken before the Sub-Divisional Magistrate, Vishnupur, on 7-4-1952, where the objections were overruled. The first point is that in view of the finding which was recorded when dissolving the order under Section 144, Criminal P.C., no fresh proceedings under Section 145, Criminal P.C., should have been started in respect o| the same lands. On this point I must agree with the learned Magistrate that the recording of a finding in a proceeding under Section 144, Criminal P.C. would not bar the drawing up of proceedings under Section 145, Criminal P.C. in respect of the same lands, and the observation as to possession in a proceeding under Section 144, Criminal P.C. would not be binding in a subsequent proceeding, and if the Magistrate is satisfied on a proper material, that there is a likelihood of the breach of the peace over the disputed lands, he may draw up proceedings under Section 145, Criminal P.C. The second point taken was that the opposite party being an employee of the landlord was rot competent to figure as a party in the proceedings under Section 145. Criminal P.C. There appears, however, no legal bar to a landlord being represented by his employee.
3. It appears, however, that there is a more cogent objection to the proceedings under Section 145. Criminal P.C. as drawn up by the learned Magistrate. Two reports of the Circle Officer, South, dated 5-12-1951 and 24-12-1051 show that in about five bighas in the southwestern part of Plot No. 5 of Mouza Kaaipur, the Sonthals or the petitioners obtained possession about six months before the proceedings were drawn up, by cultivating the lands, and in a portion of Plot No. 13 of the same Mouza, they similarly obtained possession about six months before the proceedings were drawn up by constructing huts thereon. The report also shows that the petitioners felled some trees standing on Plots Nos. 4 and 5. But the proceedings include many other plots, namely, Plots Nos. 3, 6, 12 and 198 of Khatian 20 of Mouza Kanaipur and the total area of land brought within the scope of the proceedings is 62.80 acres, although it appears that the petitioners have taken actual possession of only a few bighas out of that land.
4. We must hold, therefore, that the proceedings as drawn up are open to objection, because there is no material on record to show that there is any dispute likely to result in breach of the peace relating to Plots Nos. 3, 6, 12 and 198 of Mouza Kanaipur.
5. As regards the portions of the remaining plots in which the petitioners obtained possession about six months before the proceedings were drawn up, the proceedings would be infructuous in view of the proviso to Sub-section (4) of Section 145, Criminal P.C., which provides that the Magistrate may restore lands to the original owner only if wrongful dispossession took place within two months next before the date of the proceedings. Therefore, the Magistrate could not restore lands of which the petitioners obtained possession about six months before the proceedings.
6. In the circumstances, the proceedings must be quashed. It would, however, be open To the opposite party to institute fresh proceedings in respect of lands about which there is a present apprehension of breach of the peace, provided it is found on enquiry that the petitioners have not been in clear possession of the same for more than two months.
7. Subject to the above observation, the Rule is made absolute and the proceedings under Section 145, Criminal P.C. are quashed.
8. I agree.