CHHUTTAN Vs. ALI HUSAIN

JUDGEMENT

(1.) Ali Husain and others started proceedings under Section 145, Criminal P. C. against Chuttan Khan and others in the Court of the City Magistrate of Rampur. The dispute related to a plot of land bearing No. 1153/1, situate in village Chamrawwa, in Tahsil Rampur. Ali Husain claimed that this plot of land was the common graveyard of the village and that all the residents of the village inclusive of Ali Husain had been exercising their right of burial in it and that Babban Khan, Ejaz Husain, Dilawar and Chuttan have been threatening to take unlawful possession of it under colour of some lease. The opposite parties set up a lease of 7-3-1953 in their favour and contended that the land had been allotted to them. The learned City Magistrate called for a report from the police and on 6-10-1953, passed a preliminary order stating that from the report of the police he was satisfied that a dispute likely to cause a breach of the peace existed regarding the graveyard land in village Chamrawwa and he directed the parties to put in their written statements of claim and further directed that the land be attached. After the parties had put in their written statements and had adduced evidence in support of their respective claims the learned City Magistrate by an order dated 27-4-1954, observed as follows:--

(2.) From that order an application in revision was filed before the Sessions Judge of Rampur, but the application was rejected on 6-7-1954. Chuttan Khan, Dilawar, Ejaz Husain and Babban Khan have, therefore, filed this application in revision in this Court.

(3.) Two points have been raised before me by learned counsel for the applicants. Firstly, that proceedings under Section 145, Criminal P. C. could not have been converted into proceedings under Section 147 of the Code, especially when the notice that was issued was not under Section 147. Secondly, that the proviso to Section 147(2) of the Code has not been complied with and it has not been shown as to when was this right of burial exercised on the last occasion. Reliance has been placed by learned counsel for the applicants upon certain decisions of the Patna, Lahore and Calcutta High Courts, reported in 'Subramania Pillai v. Sannasia Pillai', 2 Ind Cas 310 (Mad) (A), 'Turabali Khan v. Shromani Gurdwara Parbandhak Committee', 1933 Lah 145 (AIR V20) (B), 'Babu Khan v. Raj Kishore Pershad Narayan Singh', 1919 Pat 477 (AIR V6) (C), 'Sirkawalsingh v. Bhujasingh', 1924 Pat 784 (AIR V11) (D) and 'Haradhone Mukerjee v. Brojendranath', 1937 Cal 513 (AIR V24) (E). The view of this Court and of the Nagpur High Court on this question has, however, been different. In 'Gajrajsingh v. Emperor', 1936 All 320 (AIR V23) (F), it was held by this Court that where the initial notice, the written statements and the subsequent proceedings including the operative order are all substantially covered by Section 147, Criminal P. C., the fact that a wrong section, namely Section 145, has been quoted by the Magistrate will not alter the real character of the proceedings. The present case is on all fours with 'Gajrajsingh v. Emperor (F)', cited above with this redeeming feature that in the present case the learned Magistrate, when he detected his error, corrected it at the time of the pronouncement of the judgment. A Division Bench of the Calcutta High Court held in 'Anath Bandhu v. Wahid Ali Pramanik', 1925 Cal 1022 (AIR V12) (G) that where the proceedings are instituted under Section 145 on the basis . of a police report which states that there is an imminent risk of the breach of the peace, but the Magistrate afterwards discovers that the question at issue is not one of possession under Section 145 but is one as to rights falling under S, 147 he can convert the proceedings into proceedings under Section 147.