IVATURI SAMBASIVA RAO Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner invited the Additional First Class Magistrate, Gannavaram at Vijaya-wada to take action under Section 145, Criminal P. C. in respect of Survey No. 90 in the village of Paidikonrialpalam. The Magistrate passed a preliminary order under Section 145 (1), Criminal P. C. on 8-10-1953. Subsequently on 2-11934 he dropped proceedings on the ground "No breach of the peace can be apprehended in the near future." The present petition has been filed to set aside this order of the Magistrate.

(2.) The argument of the learned counsel for the petitioner is that once a Magistrate starts proceedings under Section 145, Criminal P. C. by issuing a preliminary order under Sub-section (1) of that section, he is bound to go on with the enquiry and complete it and decide one way or the other as to who was in possession on the relevant date and that he has no discretion whatsoever to drop proceedings. In support of this contention he referred to the decision in -- 'Amvitlal N. Shah v. Nageswara Rao', AIR 1947 Mad 133 (A). At p. 134 Kuppuswami Aiyar J. stated as follows:

(3.) It will be noticed that in the first part of the sub-section the words used are "that no such dispute as aforesaid exists or has existed." The expression "has existed" would relate to a point of time anterior to that on which the party seeks to satisfy the Magistrate under this sub-section. The word "exists" would relate to the time at which the party seeks to satisfy the Magistrate about the absence oi' a dispute. A party may be able to satisfy the Magistrate that no dispute exists in one or more of a variety of ways. The contention that once proceedings are commenced under Section 145, the Magistrate must go on to the final end and decide who was in possession will be shown to be incorrect by one illustration. Suppose on receipt of a copy of the preliminary order under Section 145 (1), Criminal P. C. one party goes to the appropriate Civil Court and flies a suit and obtains the appointment of a receiver. In such a case it will be perfectly futile for the Magistrate to go on with his enquiry and in fact, if he does so, there might well result a conflict between his orders and that of the civil Court. To the extent that it states that where there has been a subsequent settlement, proceedings may be dropped, the decision in -- 'AIR 1947 Mad 133 (A)' is undoubtedly right. But with respect to the learned Judge, his statement, that it is only in the circumstances that he mentions that proceedings can be dropped, seems to me to require qualification; the category or list of circumstance that he contemplated would seem to need addition.