MOOLCHAND PATNI Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a criminal revision arising out of proceedings under section 145 of the Code of Criminal Procedure.

(2.) ON 30th of May 1964, the Station Officer, Ganj Police Station, Raipur, filed a complaint in the Court of the Sub-Divisional Magistrate, Raipur, alleging apprehension of a breach of the peace over a dispute between party No. 1- Brijkishore (non-applicant No. 2) and party No. 2-Moolchand (applicant) in respect of the possession of a house No. 21/489, situate in Mohalla Ramsagarpara, and prayed that action under section 145 of the Code of Criminal Procedure be taken. The report further stated that the parties were claiming the house on the strength of sale deeds executed in their favour in the years 1947 and 1931 respectively by one Nathmal. It further stated that on 25th of May 1964, at about 2 p. m., there was a quarrel between the parties over the possession of the house which had also led to assault but that the dispute did not take any serious turn because the police reached there soon afterwards. Along with the report various sanha reports were also filed showing that the parties were quarrelling over the possession of the house for quite some time. The learned Magistrate, instead of passing a preliminary order under section 145 (1) of the Code of Criminal Procedure, either through ignorance or inexperience, only chose to summon both the parties for their appearance in his Court on 2-7-1964. He did not get wiser even when party No. 1 Brij- Kishore filed . an application on 16-6-1964 for the issuance of a preliminary order, as the matter was very urgent and the passing of such an order was necessary for prevention of the breach of the peace. In spite of the receipt of the said application he recorded in the order-sheet that he would visit the spot on 18-6-1964, at 9 A.M. ON 18-6-1964 no spot inspection was done as party No. 1 Brijkishore was not present. The learned Magistrate, however, on that date ordered that a special report be called for from the police. The case was fixed for 2-7-1964. ON 2-7-1964, party No. 1 Brijkishore appeared but party No. 2 Moolchand was absent. After hearing party No. 1 Brijkishore and taking into consideration the report of the Station Officer, dated 27-6-1964, to the effect that there was no apprehension of the breach of the peace and that it was also not necessary to attach the house in dispute, an order was passed directing the issuance of a preliminary order as also the attachment of the house in dispute; but on the request of the counsel for party No. 2 Moolchand, who appeared immediately after the order-sheet was closed, the issuance of the preliminary order was postponed and the case was fixed for 4-7-1964 for hearing both the parties. The parties were heard on 7-7-1964 and on 9-7-1964 the preliminary order was passed as also the order for attachment of the house in dispute.

(3.) ONCE the aforesaid crucial facts are realised, the fallacy in the contention of the learned counsel for the applicant would become apparent. At the stage of the passing of the preliminary order, the Magistrate is not concerned with the merits of the dispute, nor with the question of possession which may be with the true owner or with the trespasser. At that stage, he is solely concerned with the prevention of breach of the peace. Consequently, if he is satisfied as to its existence, the first step that he must take for its prevention is to pass a preliminary order. It is only thereafter that he is empowered to undertake the inquiry as to the fact of actual possession and pass an order under sub-section (6) of section 145 of the Code either declaring one or the other of the parties to the dispute to be entitled to possession or attaching the property in dispute until a competent Court has determined the rights of the parties thereto.