DURGA DIN Vs. RANI UDAI KUNWAR

JUDGEMENT

(1.) THIS is an application in revision against the order of the Additional Sessions Judge of Sitapur dismissing an application in revision against the order passed under Section 145, Criminal P. C. , by the sub-Divisional Magistrate, district Sitapur.

(2.) IT appears that Smt. Rani Udai Kuar was in possession of certain plots in lieu of maintenance and in which she had "sir' rights. Durga Din applicant was in possession of these plots sometime before 1945, but he was ejected under a decree of the Court and possession was delivered to rani Udai Kuar. In February, 1950, Rani Udai Kuar made an application to the Sub-Divisional magistrate complaining that Durga Din was trying to cut away the crop from the plots which belonged to her and that there was a likelihood of a breach of the peace. The Sub-Divisional magistrate then asked the Station Officer to make an inquiry and report. He also directed the sub-Inspector to make an attachment of the crop and plots if he found that there was an apprehension of a breach of the peace. The Sub-Inspector reported that there was a likelihood of a breach of the peace and he had, therefore attached the crops and plots. On receipt of this report, notice was issued to both the parties and after they had turned up the learned Magistrate passed an order that as he was satisfied that there was an apprehension of a breach of the peace, the parties should file written statements. Thereafter both the parties filed written statements. The case of the applicant was that it was he who was in actual physical possession in spite of the ejectment and that Rani Udai kuar was not in possession. Both parties then produced evidence, oral and documentary. After hearing the evidence the Sub-Divisional Magistrate came to the conclusion that Rani Udai Kuar was in possession of the plots and the crops and directed the applicant not to disturb her possession. The applicant then went in revision to the learned Sessions Judge and it was argued that the order of the Magistrate directing the Station Officer to make the attachment if he found that there was an apprehension of a breach of the peace was illegal and as such the proceedings which followed were also irregular and illegal and should be set aside. The learned Sessions Judge agreed with the contention that the learned Magistrate's order delegating his powers to the sub-Inspector to decide whether attachment should or should not be made was illegal but as an order under Section 145 (1) had been passed by the Magistrate subsequently expressing his satisfaction that there was a likelihood of a breach of the peace, and before the parties had been called upon to file written statements, the subsequent proceedings were neither illegal nor irregular.

(3.) THE grounds taken up before the learned Sessions Judge have been reiterated in this Court and the first point which has been raised is that the proceedings which followed the attachment were irregular and invalid. In support of this contention, two rulings have been cited by the learned counsel for the applicant, -- 'basdeo v. Badri Narain', AIR 1952 All 186 (A) and -- 'state v. Mukanda Singh', AIR 1951 All 621 (B ). In both these reported cases, it was held that it was not open to a Magistrate to direct the Sub-Inspector to make an attachment if he found that there was an apprehension of a breach of the peace and that it was the duty of the Magistrate to satisfy himself if there was a likelihood of a breach of the peace and then to pass an order of attachment. There can be no doubt that a Magistrate acquires jurisdiction, to take proceedings under Section 145, Criminal P. C. , only after he expresses his satisfaction, either on a police report or otherwise, that there was a likelihood of a breach of the peace. The option of attachment given to the Sub-Inspector in the present case, and the subsequent attachment made by him, were therefore certainly illegal. It remains, however, to be seen if this illegal attachment affected, the subsequent proceedings. On 20-5-1950, the Magistrate passed an order in which he mentioned that he was satisfied that there was an apprehension of a breach of the peace and directed, the parties to file written statements. No order for filing written statements was made before this order was made, although the Magistrate had asked notice to issue to both parties and both parties had turned up. It was not necessary for the Magistrate to have issued notice to both parties, but if he did so, the subsequent order will not become invalid on that score. If a Magistrate is very cautious and chooses to call the parties in order to be satisfied as to whether there was or was not an apprehension of a breach of the peace, and passes an order only after hearing them, or in their presence, the order cannot be said to be invalid. It was, therefore, on 20-5-1950, that the magistrate validly assumed jurisdiction to proceed under Section 145. If the earlier attachment was invalid, it would mean that there was no attachment of the property.