Skip to content


Ahmed Ali Sheik Vs. Sabed Sardar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1929Cal468
AppellantAhmed Ali Sheik
RespondentSabed Sardar and ors.
Cases Referred and Emperor v. Ram Baran Singh
Excerpt:
- .....p.c. should not be quashed. the main ground which has been urged before us is that inasmuch as the police report disclosed the fact that the first party was in possession of the land, and that the second party were aggressors and were trying to disturb his possession, the learned magistrate had no jurisdiction to make an order under section 145, and that the proper course for him to adopt was to issue an injunction under section 144, criminal p.c., or to bind down the second party under section 107, criminal p.c. we have been referred to some decided cases in support of this contention and amongst them to a recent decision of our own in w. stewart v. hubert hughes : air1929cal341 . the facts of that case are distinguishable from the present as the police report itself plainly showed that.....
Judgment:

Graham, J.

1. This rule was issued to show cause why certain proceedings under Section 145, Criminal P.C. should not be quashed. The main ground which has been urged before us is that inasmuch as the police report disclosed the fact that the first party was in possession of the land, and that the second party were aggressors and were trying to disturb his possession, the learned Magistrate had no jurisdiction to make an order under Section 145, and that the proper course for him to adopt was to issue an injunction under Section 144, Criminal P.C., or to bind down the second party under Section 107, Criminal P.C. We have been referred to some decided cases in support of this contention and amongst them to a recent decision of our own in W. Stewart v. Hubert Hughes : AIR1929Cal341 . The facts of that case are distinguishable from the present as the police report itself plainly showed that there was and had been for some time no immediate apprehension of a breach of the peace but only a possibility of such breach at some future date.

2. The real question here is whether the materials contained in the police report were sufficient to justify the order drawing up the proceedings, and whether taken as a whole they gave rise to an apprehension that a breach of the peace might occur. On behalf of the petitioner stress has been laid upon that portion of the report which states that the second party did not claim the land, and upon a later passage stating that in the opinion of the Sub-Inspector the first party was in possession and that Sabed Sardar, a member of the second party, was the engineer of all the golmals, that he had no land in the disputed plot but hoped to get some land through Kuram Khan by creating possession by force.

3. Now in the first place, it is to be observed that while the trend of the decisions is that it is the imminence of a breach of the peace as disclosed in the police report which creates jurisdiction, it cannot in my opinion be held that the Magistrate is 'cabined, cribbed and confined' so to speak, within the four corners of the report. It is his duty jupon all the material before him to decide whether proceedings under Section 145, are necessary or not. The words in the section are:

is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land etc.

4. The foundation of his jurisdiction is not, therefore, solely the police report, and it would manifestly be wrong that his power to take action should be made dependent upon the opinion of the Sub-Inspector of police. Speaking for myself, I am certainly not prepared to subscribe to the proposition in its extreme form that it is the police report and the police report alone which gives jurisdiction. Even so, however, and looking to the police report which was submitted in this case, what do we find? It is stated therein that from the past records it appeared that there was long standing enmity between the parties in respect of their neighbouring lands and the land in dispute and that several criminal cases had been instituted and disposed of. It is true as I have already said above that the report mentions that the second party did not claim the land. Then further on the report states that on enquiry the Sub-Inspector learnt that there was an actual immediate serious apprehension of a breach of the peace by the second party. Finally he says that under the circumstances he prays that an immediate injunction may be issued under Section 144, Criminal P.C., against the second party as a serious apprehension of a breach of the peace is apprehended. The Magistrate after having perused this report considered that the proper course was to draw up proceedings under Section 145, and he accordingly did so. It appears to me that this report undoubtedly does disclose that there appeared to be a reasonable apprehension of a breach of the peace. It is true that the Sub-Inspector has expressed his personal opinion that one of the parties was in possession and that the other was merely trying to oust him. But taking the report as a whole it seems to me that it cannot be said that the Magistrate was not justified in drawing up the proceedings.

5. There is one other matter which may be mentioned and it is this: that the learned Magistrate also appears to have based his decision to some extent upon a map which was filed in connexion with the original case under Section 145. The learned advocate for the petitioner has pointed out that this map is not on the record, and has urged that it could not have been before the Magistrate at the time when he drew up the proceedings. But this map has been referred to in the explanation which was submitted by the trying Magistrate to the District Magistrate, and it may fairly be presumed I think that it was before the Magistrate when he made his order. No doubt the map was in the record of the previous case under Section 145; and it seems probable that the record of that case was called for and perused by the Magistrate before he made the order which is complained of. Having regard to all the facts and circumstances of the case and the materials on the record in my judgment the order was a legal and proper order and the rule should be discharged.

Suhrawardy, J.

6. I agree. The facts seem to be that a police report was submitted to the Magistrate in which it was stated that there was a likelihood of a breach of the peace inasmuch as the first party was in possession of certain lands from which the second party was attempting to dispossess them. Against this report of the police there was a protest or narazi petition filed in which the correctness of the police report that the first party was in possession was disputed. The second party in fact claimed to be in possession of the land in dispute. This narazi petition appears to have reached the Magistrate before he had drawn up proceedings under Section 145, Criminal P.C. On these materials before him he drew up the proceedings. It cannot be said that he had not sufficient materials before him to apprehend that there was a dispute concerning any 'land within the local limits of his jurisdiction.' It seems to have been argued on behalf of the petitioner that if the Magistrate relied on the police report for starting proceedings under Section 145, Criminal P.C., he must rely on the whole of it. I cannot agree with this construction. The words are 'a dispute likely to cause a breach of the peace concerning any land and so.' If one party is in possession and the other is trying to disposses him, it is a dispute concerning land. But it would be a sound exercise of discretion if the Magistrate has reason to believe that one party is in possession to pass prohibitory order against the party which is trying to disturb the peaceful possession of the other party. Ganpat Singh v. Emperor [1918] 3 Pat. L.J. 287 and Emperor v. Ram Baran Singh [1906] 28 All. 406. But I am not prepared to go so far as to hold in such a case that the Magistrate had no jurisdiction to start proceedings under Section 145, Criminal P.C. It may be more proper to take preventive proceedings under Section 145, even in such a case and maintain the party in possession than to bind the other party under Section 107, Criminal P.C. In my opinion, the Magistrate is not bound to accept the. version given by the police beyond what he requires for the support of his order under Section 145. If he is satisfied from the police report that there is a likelihood of a breach of the peace concerning any land he is entitled to draw up proceedings without accepting the truth of the whole of the police report. In this case in my opinion there were sufficient materials before the Magistrate to hold that there was likelihood of a breach of the peace and the question of possession-of the land in dispute was not so clear as-to compel the Magistrate to take action; under Section 144, or 8. 107, Criminal P. C* Let the record be sent down.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //