NEPAL SINGH Vs. RAM CHANDER

JUDGEMENT

(1.) THE Magistrate passed a preliminary order under Section 145(1) Cr. P.C. initiating proceedings under Section 145. He later also made attachment. Ultimately proceeding was decided in favour of the present revisionist holding him to be in possession. THE opposite party went up in revision. THE revisional court held that the very preliminary order is bad as the police report does not show any apprehension of breach of peace. THE revision was therefore, allowed and the order of the Magistrate was set aside and proceedings under Section 145 Cr. P.C. was dismissed. THE applicant feeling aggrieved from such order of the first revisional court preferred this second -revision before this Court.

(2.) I have given my anxious considerations to the arguments advanced. On every dispute concerning any immoveable property proceedings under Section 145 Cr. P.C. cannot be initiated because ordinarily such disputes are to be resolved by the civil or revenue courts. The Magistrates jurisdiction comes into play where there is an apprehension of breach of peace centering round dispute over possession of immoveable property. The foundation of jurisdiction of the Magistrate is preliminary order. The preliminary order must record satisfaction concerning apprehension of breach of peace centering round the dispute of possession over immovable property and such satisfaction should also refer to the material upon which it is based. The opening sentence of Section 145 (1) Cr. P.C is vital and goes to the root. I may quote that part: Wherever the Executive Magistrate is satisfied from report of a police officer or upon other information that a dispute likely to cause a breach of peace exists - It is clear that the satisfaction of the Magistrate concerning apprehension of breach of peace must be based upon some information received including a police report. Obviously when that is the position the order based on any conjucture cannot be passed. The order should be based upon materials. Of course, as it is I a question of subjective satisfaction the court will not look into the adequacy of such material but material showing apprehension of breach of peace must be there because that is the vital source for deriving jurisdiction and it is not there and the preliminary order is without jurisdiction the entire subsequent proceedings will be without jurisdiction and consequently nullity. I have gone through the police report dated 29.12.1977 paper no. A3. It simply narrates the dispute between certain parties concerning possession of land. As observed earlier mere dispute of title or possession will not attract the Section 145 Cr. P.C. The other ingredient, namely apprehension of breach of peace should also coexist. The police in the entire report has not said a word that there is any such apprehension of breach of peace. Its mere advice that proceeding under Section 145 Cr. P.C. be initiated is meaningless. Whether a proceeding will be initiated or not is the function of the Magistrate based on his satisfaction. The police has to report concerning facts and the police report is completely silent on the point that there existed any apprehension of breach of peace. It is noteworthy that the Magistrate has not referred to any material information. He has referred to the very police report for his satisfaction while that report did not contain any such thing upon which a subjective satisfaction concerning of breach of peace could be based. Even if later materials are brought before - the court concerning such apprehension that would not cure the illegality because jurisdiction is derived from the preliminary order itself and when preliminary order itself is bad the entire subsequent proceedings will be without jurisdiction. The first revisional court has therefore rightly set aside the judgment of the Magistrate and was justified in dismissing the case under Section 145 Cr. P.C. and this second revision has no force and it also fails and dismissed. But before parting with this cast I may observe that it is always open to pass any proper preliminary order afresh if any materials are brought to the notice of the Magistrate making out the ingredients for passing order under Section 145 (1) Cr P.C. and the Magistrate will be at liberty and this judgment would not bar any fresh proceeding according to law. Petition dismissed