M ANWAR Vs. HAJI ABDUL AZIZ SAHEB

JUDGEMENT

(1.) This reference is made under Section 8 (2) of the Mysore High Court Act, 1961, by single Judge of this court to this Bench. It was argued on behalf of the petitioner that the provisions of Section 145 of the Criminal Procedure Code are self-contained, and inasmuch as the said provisions do not provide for calling for report from the police in respect of the application filed under Section 145, Cr. P. C. the Magistrate was not competent to call for the report from the police. His Lordship Justice Venkataswami was of the opinion that on the express terms of Section 145, Cr. P. C. the contention advanced on behalf of the petitioners involved point of law; and referred the case to this bench.

(2.) The material facts briefly stated are: that an application was filed under Section 145, Cr. P. C., by the members of the First party that the disputed saw mill situated in Mysore originally belonged to one Haji Abdul Aziz Saheb. The first member of the first party and the first member of the second party are brothers and they are sons of Haji Abdul Aziz Saheb. The second member of the first party is the widow of Haji Abdul Aziz Saheb. The other members of the second party are said to be alleged purchasers of the saw mill from the first member of the second party. After the death of Ha.ij Abdul Aziz Saheb, a dispute arose with regard to the possession of the mill. The first party moved the City Magistrate, Mysore by an application under Section 145 of the Cr. P. C. The learned Magistrate on filing of the application called for the police report and after receipt of the same on 15-7-1969. he made the following order in the Court-sheet: "15-7-1969. Complainant present and says that he will prove his case posted on 22-8-69 for evidence of 1st party." On 22-8-1969, he heard the counsel for the first party and posted the case for orders on 29-8-1969. The Court-sheet of that day reads: "1st party at request further argument heard from the counsel for 1st parties. He files a list with documents: Order on 3-9-69." And, eventually on 11-9-1969, he passed the order, the operative portion of which reads:

(3.) The reference made to this bench is to the effect that the provision of Section 145, Cr. P. C. being self-contained there is no scope for calling for a police report. Mr. Mahesh Chandra Guru, learned counsel for the petitioners argued, that Section 145 of the Cr. P. C. is self-contained and it contains no provision for calling for a report from the Police in respect of a complaint such as the one made by the petitioners before the Magistrate. He submitted that under the provision of Section 145 of the Cr. P. C., the Magistrate can exercise his jurisdiction only on the basis of police report or other information. According to him, in cases where there is likelihood of breach of the peace in respect of dispute relating to immovable property, the police could submit a report to the Magistrate requesting him for necessary action to be taken under Section 145 or other relevant provision of the Cr. P. C. A private party also, who apprehends breach of the peace in respect of dispute relating to immovable property, may move the Court tinder Section 145 of the Cr. P. C. He urged that the Magistrate can proceed under Section 145 of the Cr. P. C., on the basis of the police report or the complaint made to him by a private person. But he maintained that it is not open to Magistrate to call for the police report. In other words, his submission was that the Magistrate should make up his mind on the material placed before him and then proceed to pass the necessary order.