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Ram Saran and ors. Vs. Ramdas - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1965CriLJ698
AppellantRam Saran and ors.
RespondentRamdas
Cases Referred and Haidar Thakur v. Emperor
Excerpt:
- .....the addl. sessions judge jammu has made a recommendation to this court that the order of the trial magistrate be set aside as it is full of so many irregularities.4. before me ramdas respondent did not appear, ham saran and others, petitioners, were represented by mr.d.d. thakur.5. i have quoted verbatim the preliminary order passed by the trial magistrate. there is consensus of authority and a string of rulings of all high courts including this court which have clearly brought out what are the essential requirements of a preliminary order under section 145 of the criminal p.c. many a genuine case falls through because of the incompetence or inattention of trial magistrates. it is too late in the day to reiterate what are the essential conditions of a preliminary order under this.....
Judgment:
ORDER

J.N. Bhat, J.

1. The facts giving rise to tills criminal reference by the learned Addl. sessions Judge Jammu are that one Ramdas put in application under Sections 145/147 of the Criminal P.C. with respect to 11 Kanals and 2 marlas of land in survey No. 641/63 in village Mitra guna Tehsil Ramban. The allegation of Ramdas was that me non-applicants 1 to 3 in the petition had taken forcible possession of the land and had threatened to do away with. Ramdas if he in any way interfered with their possession.

2. The trial Court of the Munsiff Magistrate first class Ramban after recording the statement of me applicant Ramdas ordered as follows:

The statement of the applicant has been recorded and the copy of the Girdawari records has teen perused, it appears that the applicant has apprehension of a breach of peace from the non-applicants with respect to survey No. 641/63. Notice under Section 145(1) of the Criminal P.C. be issued to the non-applicants requiring them to appear either In person or through a pleader and put in their reply with respect to the possession of the land.

3. After recording the evidence of the parties, and inspecting the spot, the trial Court by means of its order dated 23.2.61 allowed the application with costs and ordered the applicant's possession to be restored. In revision the Addl. Sessions Judge Jammu has made a recommendation to this Court that the order of the trial Magistrate be set aside as it is full of so many irregularities.

4. Before me Ramdas respondent did not appear, ham Saran and others, petitioners, were represented by Mr.D.D. Thakur.

5. I have quoted verbatim the preliminary order passed by the trial Magistrate. There is consensus of authority and a string of rulings of all High Courts including this Court which have clearly brought out what are the essential requirements of a preliminary order under Section 145 of the Criminal P.C. Many a genuine case falls through because of the incompetence or Inattention of trial Magistrates. It is too late in the day to reiterate what are the essential conditions of a preliminary order under this section, it should contain (1) a statement that the magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace: (2) The grounds of his being so satisfied; (3) A correct description of the property in respect of which the proceedings are instituted; (4) The parties concerned in such dispute; and (5) A direction requiring the parties or either of them to attend the Court on a particular day and put in the written statement of their claim in respect of the fact of the actual possession of the land in dispute.

When we peruse the order of the trial Magistrate in the present case, we find that this order is lacking in almost ail the essential requirements of a preliminary order under Section 145 of the Criminal P.C. The Magistrate has nowhere stated in his order that he is satisfied as to the existence of a dispute between the parties which. Is likely to cause a breach of the peace. On this point all that he has said is that the applicant before him apprehended a breach of the peace with respect to the survey number in question. The Section requires the satisfaction of the magistrate and not of a party to the dispute, in such circumstances he could not at all give the grounds of his being satisfied about a dispute with respect to the possession of the immovable property. Due to his zeal or lack of attention tie has not even cared to mention the village where the property Is situate. The area of the land even has not at all been given, nor has the Magistrate recorded any direction to either party to tile their o ejections with respect to actual possession of the plot in dispute, as was necessary under the law. With these lacunae in the preliminary order, the proceedings have started and because the preliminary order is not in accordance with law, the entire superstructure must fall down.

6. The final order is equally not maintainable. The Addl. Sessions Judge has brought out in detail the patent defects in the order of the trial Magistrate. The trial Magistrate has not at all discussed the evidence in the case and given any reasons for his finding, except that he has incorporated his personal knowledge from the inspection of the spot. Here also the learned Magistrate has acted with material irregularity. The provision relating to local inspection is contained in Section 539-B of the Criminal P.C. where in it has been laid down that

any judge or Magistrate may at any stage of any inquiry, trial or other proceedings, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial....

7. The object of a local inspection is to enable a Magistrate to understand correctly the topography of the spot to be able to appreciate the evidence offered in Court. Authorities on this point need not be cited as they are numerous. But a Magistrate cannot mane use of this section to find out for himself the facts of a case. For does this section contemplate a procedure by which the Magistrate has to all intents and purposes to put himself in the position of a witness in the case? It has been held that where a Magistrate after a local inspection made a note and used it as evidence in the case, he placed himself in the position of a witness and that such a procedure was not justified under this section. Reference may in this behalf be made to Jailal Jha v. Emperor AIR 1823 Pat 537, Mathura Prasad v. State of Vindhya Pradesh AIR 1953 Vind Pra 14 and Haidar Thakur v. Emperor AIR 1929 Pat 160.

8. The Magistrate m the present case has not at all co-related his inspection on the spot with the evidence produced by the parties. On the other hand he has laid down:

From spot Inspection it is clear that the non-applicants have managed to get entered in their name Shamilat Deh which is quite barren and uneven and divided by a Nallah.... From the record as well as evidence I am convinced that the applicant was in possession of the disputed land before the non-applicant took forcible possession of the land and he is entitled to get back the same under Section 149, criminal P.C.

9. Thereafter is the final order wherein it is stated 'The application Is therefore allowed with costs and the applicant's possession be restored accordingly.'

10. The extracts from the order quoted above would clearly indicate the negligence of the Magistrate to do what was expected of him. He has never cared to specify the area of the land or the village, nor has he at all mentioned or found when the applicant was dispossessed from the land. There is one sweeping remark that from the record as well as the evidence the Magistrate was convinced that the applicant was in possession of the disputed land. What is that evidence is not clear. On what he has based his finding one does not know. What record does he mean or refer to when he uses the word 'record' we are not able to say. In fact It appears that the learned Magistrate went on the spot and formed his own opinion about the facts of the case and perhaps relied on his own intuition in matters such as dispossession and allied matters, because the pot inspection did not and could not reveal to him the fact of dispossession nor the fact when that dispossession had taken place.

11. Neither in the preliminary order nor in the final order is there a finding about the danger to public peace. The imminence of a breach of public peace is an essential ingredient and perhaps the only important ingredient to give Jurisdiction to a Magistrate to start proceedings and pass final orders under Section 145 of the Criminal P.C. Mere dispossession, however wrongly is not sufficient to give jurisdiction to a criminal court to start proceeding under Section 145 of the Criminal P.C. Such cases are eminently matters which reveal a dispute of a civil nature and can be letter adjudicated upon in civil Courts than under the speedy provisions of Section 145 of the Criminal P.C.

12. These being the irregularities committed by the Magistrate in disposing of this case, I have no alternative but to accept the recommendation of the Addl. Sessions Judge and quash the proceedings taken under Section 145 of the Criminal P.C. The proceedings are therefore quashed.


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