SAFDARI BEGAM Vs. ASHFAQ HUSAIN KHAN

JUDGEMENT

(1.) The applicant instituted proceedings under Section 145, Criminal P. C., against Ashfaq Husain Khan alleging that there was a dispute between them about possession over a house which was likely to cause breach of peace. The Magistrate got an enquiry made by the Police who reported that there was a dispute and that it was likely to result in breach of peace. The Magistrate thereupon passed the preliminary order calling upon the parties to file written statements in support of their claims of possession. The date fixed for filing of the written statements was 22nd May 1948. When the case was called out on that date the applicant was absent while the opposite party was present. The Magistrate dismissed the applicant's complaint 'in default' and released the house from the attachment. The applicant appeared in the Court shortly after the dismissal of her complaint and presented another complaint on the same allegations. The Magistrate treated it as a fresh application and again sent it to the police for enquiry and report and the police again reported that the dispute was continuing and was likely to give rise to breach of the peace. The Magistrate ordered the parties to file written statements. When the parties appeared on the next date it was brought to his notice that he had not passed the preliminary order on the fresh application. In reply it was suggested by the applicant that the second application was really no fresh application but an application to set aside the order of the 22nd May 1948 and to revive the proceedings started on the first complaint. The Magistrate did not agree with the applicant's contention. He treated the second complaint as a fresh complaint. The applicant being aggrieved by his order went up in revision to the learned Sessions Judge. The learned Sessions Judge recommends in his order of reference that the order of 22nd May 1948 was ultra vires and should be set aside and that the proceedings started on the second complaint of that date be quashed.

(2.) The principal question is whether the order of 22nd May 1948 dismissing the complaint "in default" is legal. Proceedings under Section 145, Criminal P. C. are of a special nature, there is nothing analogous to them in the rest of the Code. A dispute about immovable property is ordinarily to be decided by a civil Court. But on account of its giving rise to apprehension of breach of the peace, special jurisdiction is conferred upon a Magistrate to take notice of it and to proceed in a certain manner so as to prevent the peace being broken. He would have no jurisdiction over the dispute if it did not give rise to apprehension of breach of the peace. How he is to proceed is exhaustively dealt with in Ss. 145, 146 and 148. No aid is to be had from the remaining sections of the Code in the matter of procedure. Section 356 lays down the manner in which the evidence would be recorded by the Magistrate; it has nothing to do with the procedure to be followed. A Magistrate, therefore, cannot pass an order that is not contemplated by Sections 145, 146 and 148 or is against their provisions. A complaint of an offence may be dismissed in default on account of the complainant's absence but neither is an application to a Magistrate to take cognizance of a dispute under Section 145 a complaint nor can it be dismissed in default under any provision contained in Ss. 146 to 148. The Code defines a "complaint" to mean an allegation made to a Magistrate that some person "has committed an offence". An application under Section 145 does not-contain an allegation that any offence is committed by the opposite party; on the other hand, it is directed towards preventing that party's committing an offence by breaking the pease. Consequently, the provision under which a complaint can be dismissed in default cannot be applied to dismiss an application under Section 145 on the ground of the applicant's absence. According to the procedure laid down in the three sections mentioned above the Magistrate is required to

(3.) The illegality of dismissal of an application in default can be demonstrated in another way. A plaint or a complaint can be dismissed in default but they cannot be allowed ex parte without evidence. In a regular trial or a suit there are two parties, one having the pre-deter-mined position of complainant or plaintiff and the other having the pre-determined position of accused or defendant. But the same cannot be said of proceedings under Section 145. The proceedings are commenced at the instance of one party, who is called the applicant. But once the Magistrate assumes jurisdiction, both parties stand on the same footing and neither can be said to be a complainant or plaintiff. When the names of the parties are written, some name has to be written first but that would not make that party a complainant or plaintiff. Therefore, no Order of dismissal in default can be passed.