JAYANTILAL PADAMSHREE SHAH Vs. CHANDU KHUSHALDAS UDHWANI

JUDGEMENT

(1.) This petition raises following two questions in respect of the procedure which a Magistrate is expected to follow before passing an order under section 145(1) Cri.P.C. :

(2.) The dispute in the matter relates to Gala No. 5, Shaikh Sahajani Industrial Estate, Sonawala Cross Road, Goregaon, Bombay. The Inspector, Goregaon Police Station made a report to the Additional Chief Metropolitan Magistrate on 23-5-1985 about the existence of a dispute contemplated by section 145(1) Cri.P.C. The learned Additional Chief Metropolitan Magistrate did not make preliminary order on the basis of the report, but instead issued notice to the petitioner and respondent Nos. 1 and 2, calling upon them to show cause why order under section 145(1) Cri.P.C. should not be made. Both the parties appeared in pursuance to those notices. They filed some documents in support of their rival contentions and were also heard. After hearing them, the learned Additional Chief Metropolitan Magistrate passed a preliminary order under section 145(1) Cri.P.C. as also order under section 146(1) Cri.P.C. attaching the property in question. This order was passed on 14-7-1984. Thereafter the parties filed their written statements, produced documents in support of their respective claims and led oral evidence. On consideration of the evidence, the learned Magistrate found that the surrender of the tenancy by respondent No. 1---Chandru in favour of the landlord was unauthorised, that respondent No. 1 was wrongly dispossessed and the petitioner inducted wrongfully and that respondent No. 1 was the person in actual possession on the material date and that he was entitled to get possession of the disputed property. Being aggrieved by this decision, the petitioner filed a Criminal Revision Application to the Sessions Court, Bombay. The said order was challenged not only on merits, but it was also contended that in view of the procedure adopted by the learned Magistrate in issuing notices to and hearing the parties before passing the preliminary order, the whole proceedings were rendered illegal and the final order invalid. The learned Additional Sessions Judge rejected this legal objection and found that the conclusions of the Magistrate are in accordance with law, common sense, ordinary behaviour of human beings and are absolutely just. This order passed by the learned Additional Sessions Judge is not challenged on merits, but on the above mentioned points of law.

(3.) Shri Thakar, the learned Advocate for the petitioner, contended that the Magistrate exercising powers under section 145 Cri.P.C. has no authority to hear both the sides before making the preliminary order. According to him if the police report does not set out enough material about the likelihood of breach of peace, it is not open to the Magistrate to collect information either by hearing the parties or otherwise. It is difficult to accept this contention.