NATHI LAL Vs. SUNIL KUMAR SINGH

JUDGEMENT

(1.) The applicant has come forward with a prayer that the preliminary order dated 6-2-1982 of the Magistrate under section 145 Criminal Procedure Code (Annexure I), the order of the Magistrate under section 146 Sub-clause I of the same date (Annexure II) and the other order dated 20-3-82 of the Magistrate (Annexure VI) be all quashed. The order annexure VI is an order rejecting the prayer of the applicant that the proceedings cannot continue. Objections were twofold. Firstly that a civil suit was instituted prior to the proceedings under section 145 Criminal Procedure Code and in that suit an order favourable to the applicant was passed and proceedings under section 145 and 146 Criminal Procedure Code could not continue. So far as that contention is concerned the law is now well settled that proceedings under section 145 Criminal Procedure Code are independent proceedings and any civil proceedings pending or decided does not stand in its way. The case of Kalap Din v. State1, Jafar Husain v. State2, Mst. Hasanki v. State3 are authorities on the point. The view taken in those pronouncements finds Support from the Supreme Courts observations in the case of R. A. Bhutani v. Miss Mani4.

(2.) I may now proceed to consider whether the preliminary order passed in this case itself is bad and thereby vitiate the entire proceedings under section 145 Criminal Procedure Code. The preliminary order is Annexure I. The Magistrate has recited in that order that he has perused the police report dated 4-2-1982 and from the same he is satisfied that on a dispute concerning 125 Sq. yds of land on the beach of factory on which Nathi Lal and others have opened a door, made an enclosure by wan there is apprehension of breach of peace between the parties. The order further recited that the parties are directed to file their claims before the Magistrate. The order Annexure II passed on the same date is to the effect that the Magistrate has perused the report dated 4-2-82 of Police Station Rakabganj and has satisfied that on a piece of land of 125 sq. yds. Nathi Lal has opened a door on the back wall and has taken possession, while Pushpa Sharma has also opened a door in that direction and on a dispute centering round the same apprehension of breach of piece exists and it is, therefore, directed that the land in question be attached. The police report of police Station Rakabganj is Annexure I of the supplementary affidavit. It states that there was no door earlier towards the land in the back of the factory of Nathi Lal opposite party. But Nathi Lal has opened a door in the back wall of the factory and has enclosed 125 Sq. Yds. of land only two days prior to the report. While the first party sunil kumar has documents in support of his claims to the land the other side did not produce any such document. Centering round the dispute in question there is tension between the parties an a there is apprehension of breach of peace. It is also mentioned that following Nathi Lal applicant Kmt. Pushpa Sharma, the present Opposite party no. 2 has also opened a door towards the land in dispute and is trying to enclose it. It is further stated that the police is giving this report for initiating proceedings under sections 145 and 146 Criminal Procedure Code.

(3.) The parties have filed affidavits, Supplementary affidavit and counter affidavit. This Court will not consider the merits of the claim as such nor would it enter into questions of facts. The crux of the matter, therefore, is whether the preliminary order is defective. It cannot admit of any dispute that the Magistrate derived its jurisdiction from the preliminary order and the preliminary order, therefore, goes to the root of the case. It is also a well settled law that the maintenance of law and order and prevention of breach of peace in primarily a duty concerned with the Magistrate and it is the subjective satisfaction of the Magistrate as such which is paramount. The matter is thus to be approached keeping these two well settled proposition of law in mind.