STATE OF MADHYA PRADESH Vs. BADGAIYA

JUDGEMENT

(1.) THIS is a reference under Section 438 of the code of Criminal Procedure arising out of proceedings under" Section 145 of the Code of Criminal Procedure.

(2.) ON 1. 7. 1963 Dukhni (Patty No. 1) filed an application before the Sub-Divisional Magistrate, Sohagpur, under Section 145 of the Code of Criminal Procedure. The case of party No. 1 is that lands in dispute belong to her and she was in possession thereof. Two days before the filing of the application party No. 2 dispossessed her. On receiving the application the Sub.-Divisional Magistrate sent it for police inquiry and report. On receipt of the police-report, the Sub -. Divisional Magistrate passed a preliminary order on 2-9-1968. After holding due enquiry into the dispute final order was passed on 3-4-1969 in favour of party No. 1 directing that party No. 1 be put in possession of the land in dispute. Party No. 2 was directed not to interfere with the possession of Party No. 1. Being aggrieved by this order party No. 2 filed a revision petition before the Additional Sessions Judge, Shahdol who has submitted this reference with recom-mendation that the final order dated 3-4-1969 be quashed. When the reference came before the learned Single Judge (K. K. Duby, J.) for hearing, he submitted the papers to the Chief Justice for consideration of the following question by a larger Bench. ''whether a Magistrate loses jurisdiction to pass a preliminary order and is precluded from continuing the proceedings under Section 145, Code of Criminal Procedure, after the lapse of two months of forcible dispossession from the land and could the Magistrate order restoration of the possession in such cases to the complainant ?" The case has, therefore, come up before us for considering the aforesaid question.

(3.) THE learned Single Judge has observed in the opening paragraph of the order of reference that there is divergence of opinion as to the jurisdiction of Magistrate to pass a preliminary Section 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') two months after dispossession of the complainant from the disputed land. With great respect for the learned Judge it appears to us that there is not controversy whatsoever regarding jurisdiction of a Magistrate to pass a preliminary order 2 months after the dispossession of the complainant from the disputed land. The object of Section 145 of the Code is to prevent a breach of the peace on account of a dispute over land by bringing before the Court the disputing parties in order to ascertain who was in immediate possession and to protect his possession until the rights of the parties are effectively determined by a proper tribunal. Where a dispute exists concerning and land and such dispute is likely to cause breach of the peace, the Magistrate has jurisdiction to pass a preliminary order under Sub-section (1) of Section 145 of the Code and to proceed to hold a pro-per enquiry as required by Sub-section (4) thereof. The date on which a particular party was dispossessed may be material for the purpose of determining in whose favour the final order may be passed. But it is not at all material for the purpose of passing the preliminary order. The jurisdiction of the Magistrate to pass a preliminary order does not at all depend on the date on which a party was dispossessed and there is nothing in Section 145 of the code to take away the jurisdiction of a Magistrate to pass a preliminary order 2 months after dispossession of the complain-ant from the disputed land. None of the decisions to which the learned Single Judge has referred seems to lay down that the Magistrate loses jurisdiction to pass a preliminary order and is precluded from continuing the proceedings under Section 145 of the Code of Criminal Procedure after the lapse of two months from the date of forcible dispossession from the land.