HARI RAM Vs. BANWARI LAL

JUDGEMENT

(1.) The residents of Gobindpuri Extension, New Delhi, encroached upon a portion of Government land and raised a construction thereon. It appears that thereafter the residents got divided into two groups. Banwari Lal and others, the first party, wanted to use the premises as Panchayat Ghar whereas Hari Ram and others, party No. 2, wanted to instal a Sadhu by the name of Ram Rakha, a disciple of Baba Balak Ram, in the said premises with a view to convert the same into a temple. Hari Ram and others had actually induced Ram Rakha info the premises but later on Banwari Lal and others turned him out and took . forcible possession of the premises. They started using the premiss as Panchayat Ghar. The dispute between the two groups' resulted in a tension and' the matter was reported to the police. The police made a recomendation to the trial Magistrate for taking proceedings under section 145, Criminal Procedure Code. Shri R.B.L, Mathur Sub Divisional Magistrate, New Delhi, on 11th December, 1963, passed the following order :

(2.) The contesting parties were asked to attend the Court in person or through pleaders on 20th December, 1963, and put in their written statements in support of their respective claims with respect to the actual possession of the premises in dispute. They were also directed to put in documents or affidavits insupport thereof. The premises in dispute were attached under the, said order of the Court dated 11th December, 1963. The trial Magistrate after examining the evidence of both the parties came to the conclusion that on the relevant date Banwari Lal and others, the first party, were in possession of the premises in dispute and they were therefore, allowed to remain in possession. Against the said order dated 1st September,1964 Hari Ram and others, party No. 2, filed a revision petition before the Additional Sessions Judge, Delhi, and he recommended to this Court that the proceedings taken between the parties under section 145, Criminal Procedure Code, be quashed after setting aside the order of the trial Court dated 1st September, 1964. The basis of the decision of the learned Additional Sessions Judge is that since no one in the affidavits filed ever asserted that a dispute likely to cause a breach of the peace had existed between the parties concerning the property in dispute, the necessary condition for passing of an order under section 145, Criminal Procedure Code, was absent. He further held that in the judgment the trial Court had, nowhere decided that a danger of a breach of the peace existed and therefore, the order suffered from an infirmity which rendered it liable to be quashed. Mr. Safeer appearing for party No. 2 has strenuously supported the recommendation of the learned Additional Sessions Judge and has urged the following points :- (1) The trial Magistrate was bound to find before passing the final order under section 145, Criminal Procedure Code, that there was likelishod of a breach of the peace and in the absence of that finding the trial Magistrate's order could not stand. (2) Some of the affidavits filed, such as affidavit by Jagat Ram dated 21st July, 1964, had caregorically asserted "that no breach of peace exists with regard to the property in dispute" and consequently in view of sub-section (5) of section 145, Criminal Procedure Code, the trial Magistrate was bound to record a finding about the existence or non-existence of a dispute likely to cause a breach of the peace and not having done so the learned Additional Sessions Judge was right in making the recommendation.

(3.) There appears to be no force in the first contention of Mr. Safeer. Of course, the Magistrate can under sub-section (1) of section 145, Criminal Procedure Code, assume jurisdiction only if he is satisfied that at the time of passing the preliminary order a dispute likely to cause a breach of the peace exists concerning any land etc. Once that is done the Magistrate is thereafter expected to call upon the parties concerned in such dispute to attend his Court in person or by pleader and put in written statements of their respective claims asrespects the fact of actual possession of the subject of dispute. The enquiry, therefore, after the inital satisfaction of the Magistrate and after the assumption of jurisdiction by him,has to be directed only as respects the facts of actual possession. At that time he has not to record a finding again "about the existence of a dispute likely to cause a breach of the peace. This view is supported by a decision of Shampher Bahadur, J. in Misri Singh v. Pala Singh and another In Ranada Ranjan Bhattacharia v. Bharat Ghandra Shaha and ors. the same question was discussed and the learned Judges decided.