AKBARALI Vs. PYARA

JUDGEMENT

(1.) THIS is a revision by a party to proceedings under section 145 criminal Procedure Code against the order of the Third Additional Sessions judge, Ujjain, in Criminal Revision No. 41 of 1969, dated 9-7-1971, affirming the order, dated 5-3-1969, passed by the Sub-Divisional Magistrate, Ujjain in Criminal Case No. 94 of 1968.

(2.) THE petitioner made a report to the Sub-Divisional Magistrate on the allegation that there was a likelihood of a breach of the peace in respect of an open piece of land having Municipal No. 3/1904, measuring 65 feetx34 feet and that the respondents wanted to obstruct the construction proposed to be made by the petitioner. The police also had filed a challan in that behalf the trial Magistrate passed a preliminary order and noticed the opposite party to put in its written statement. On behalf of the respondents, it was asserted that there was no likelihood of a breach of the peace. The learned Magistrate recorded some findings, which were against the petitioner and ultimately, dismissed the petitioner's complaint. Against that order a revision was filed by the petitioner. The learned Additional Sessions Judge recorded two findings in favour of the petitioner, but ultimately dismissed the revision on the ground that the finding of the trial Magistrate about there being no likelihood of a breach of the peace was correct. Hence this Court has been moved under section 439, Criminal Procedure Code.

(3.) AT this stage it might also be mentioned that the petitioner has also filed a Civil Suit claiming title to the property. The contention of the learned counsel for the petitioner is that once the Magistrate passed a preliminary order under sub-section (1) of section 145, Criminal Procedure Code, he had no jurisdiction to go into the question of a likelihood or otherwise of a breach of the peace and his inquiry should have been confined to the fact of possession alone. For this proposition he relies on the observations of S. K. Kapur, J. in Hari Ram v. Banwari Lal (AIR 1967 Pun. 378. ). It is true that the learned Judge placing reliance on some earlier cases held that once the Magistrate passed a preliminary order under sub section (1) of section 145, Criminal Procedure Code he would have no jurisdiction to go into the question of likelihood or otherwise of a breach of the peace in the inquiry contemplated under sub-section (4) of section 145, criminal Procedure Code and such inquiry ought to be confined to the question of possession only. With due respect to the learned Judge I am unable to accede to that proposition which, in my opinion, has been rather broadly stated and which altogether does not take into consideration the wording of sub-section (5) of section 145, Criminal Procedure Code. If I put the proposition correctly, it is the right of a person required to attend or any other person interested by virtue of sub-section (5) of section 145, Criminal Procedure Code to show that no such dispute as aforesaid exists or has existed. The preliminary order under sub-section (1) of the section is necessarily passed exparte when the other side has not appeared before the Magistrate. Therefore, the right of the other party to show that no dispute exist or has existed has been kept intact by sub section (5) of section 145 Criminal Procedure Code and that right cannot be nullified by propounding a broad based proposition that the inquiry contemplated by sub-section (4) of the section should be confined to the question of possession only and not to the question of likelihood or otherwise of a breach of the peace. If that broad based proposition were to be accepted, it will nullify the right conferred by sub-section (5) of section 145.