LEOPOLDINE B GRACIAS Vs. VASSUDEVA R P MALLAR

JUDGEMENT

(1.) In this Reference the Additional District and Sessions Judge, Margao, has recommended that the order dated 21-4-1970 of the Sub-Divisional Magistrate, passed under Section 145, Cr. P.C., whereby he declared that the respondent No. 1 was in possession in respect of the land in dispute, be set aside. The grounds on which the recommendation is based are :-

(2.) Before I enter into the merits of this reference one fact that has to be considered by me is an authority of the Supreme Court in R.H. Bhutani V/s. Mani J. Desai, 1968 AIR(SC) 1444 which deals with a similar case arising under Section 145, Cr. P.C. In that case the Bombay High Court had set aside the order of the Magistrate issued under Section 145, Cr. P.C. on the grounds that the Magistrate had failed to record in his preliminary order the reasons for his satisfaction and also on the ground that there was no sufficient material before the Magistrate for issuing the preliminary order. The Supreme Court has held as follows :-

(3.) The preliminary order issued by the Magistrate in this case begins with the words "whereas it is reported and I am satisfied that there is a likelihood of breach of peace between both the parties regarding the dispute of actual possession of land known as "Georgina" situated at Loliem. Taluka Canacona, etc. From these words it is abundantly clear that the learned Magistrate was satisfied about the likelihood of breach of the peace in I respect of 'certain land in dispute. The words "it is reported" necessarily lead us to the inference that it was reported by the Police in other words that his satisfaction about the breach of peace and of the existence of a dispute was based on the Police report. In the present case, therefore, the first two grounds upon which the recommendation was made would not stand in view of the above decision of the Supreme Court unless it is shown that there was no material whatsoever before the Magistrate to issue an order under Section 145 Cr. P.C. But that is not the case. I find that there was a Police report wherein the Police have clearly stated that the parties were likely to come to clash and the dispute is likely to induce a breach of the peace. Besides, there is a number of statements recorded by the Police which go to show that there was likelihood of breach of the peace. Whether that material was sufficient or not is not for this Court to go into.