JENATBIBI Vs. KASAMBHAI NURBHAI RADHANPURI

JUDGEMENT

(1.) This matter arises out of proceedings under sec. 145 of the Code of Criminal Procedure between the petitioner and respondent No. 1 before the Sub Divisional Magistrate Dholka respondent No. 2 decided by him on 24th April 1967. This order of respondent No. 2 was confirmed on 20th June 1967 by the learned District Magistrate Ahmedabad respondent No. 3. These orders are challenged and sought to be revised by this petition under Art. 227 of the Constitution of India and secs. 561A and 439 of the Code of Criminal Procedure. The lands in dispute are situated at Dholka and it is the case of the petitioner that she was in possession of the lands which was sought to be disturbed by respondent No. 1 whose case on the other hand was that he was in actual physical possession of the lands. It appears that some litigation was going on between the petitioner and respondent No. 1 and there were disputes between them in respect of the lands. The petitioner gave an application to the police in March 1967 that she had apprehension that respondent No. 1 was likely to cause harm and danger to life and her property and that steps should be immediately taken under sec. 145 of the Code of Criminal Procedure. A report dated 1st April 1967 was made by the police to the Sub Divisional Magistrate who pursuant to the report issued a notice dated 10th April 1967 calling upon the petitioner and respondent No. 1 to appear before the Court and submit written statements as regards the actual possession of the lands and to produce necessary documents and affidavits of witnesses in support of their claims. Some documents and several affidavits were filed by the parties before the SubDivisional Magistrate and after a hearing the Sub Divisional Magistrate came to the conclusion that respondent No. 1s claim to actual possession of the disputed lands was genuine and declared him to be entitled to retain the lands unless possession was taken over from him by due process of law. This order was passed by the learned Sub-Divisional Magistrate on 24th April 1967 and a Revision Application against that order was dismissed on 20th June 1967 by the learned District Magistrate Ahmedabad.

(2.) The first ground on which Mr. Chhatrapati learned advocate for the petitioner challenged the validity of the order passed by the learned Sub Divisional Magistrate was that the learned Magistrate had not passed any order in writing stating the grounds of his satisfaction about the existence of a dispute concerning any land which was likely to cause a breach of peace. It was contended that the passing of such an order was obligatory before proceedings could be started under sec. 145(1) of the Code of Criminal Procedure. Now what appears to have happened is that on receipt of the report from the police the learned Sub Divisional Magistrate made an endorsement to the following effect : -

(3.) It was urged by Mr. Chhatrapati that there were no grounds mentioned in the notice and a mere reference to a police report would not suffice to make the order valid when in fact the police report did not disclose any material indicating the existence of a dispute likely to cause a breach of peace. If we look at the police report it does refer to the dispute between the parties and states that if no action is taken there was a likelihood of commission of serious offences and murders. It also refers to some criminal proceedings against some of the parties and the necessity for immediate action under sec. 145 of the Code of Criminal Procedure. The petitioner herself had given an application to the police to take action under sec. 145 making allegations of apprehension of danger to life and property and on considering the application of the petitioner which was before the police confirmed by her statement the police had made the report pursuant to which the learned Magistrate acted under sec. 145(1). It could not therefore be said that there was no material before the police on the basis of which a report could be made and it could not also be said that there was no material before the learned Magistrate on the basis of which he could pass an order under sec. 145(1). For the reasons aforesaid the proceedings that were started by the learned Sub Divisional Magistrate and the proceedings subsequent thereto could not be held to be invalid and the contention of Mr. Chhatrapati that all subsequent proceedings must be held to be invalid must be rejected.