SHARFUDDIN Vs. SIRAJUDDIN

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Sambalpur recommending the setting aside of an order dated 18-2-60 passed by a First Class Magistrate of Uditnagar directing delivery of possession of certain lands io the second party (opposite party in this proceeding),

(2.) The disputed lands were the subject matter of a regular proceeding under Section 145 Cri. P. C. before the said Magistrate, in Miscellaneous Case No. 602/T-435 of 1959. The lands were attached during the pendency of the proceeding. The learned Magistrate eventually dropped the proceeding under Section 145 Cri. P. C. on 18-1-60 observing that he was not inclined to believe that there would be any fresh breach of peace between the parties and that they might get their dispute decided by the Civil Court. On the question of possession lie held that neither party was in actual possession as the disputed lands were cultivated by tenants. He also observed that neither party threatened to dispossess the tenants. Though the Magistrate thus dropped the proceeding on 18-1-60 he did not pass any ancillary order on that date as regards the disposal of the attached lands. After waiting for the period of revision, the learned Magistrate on 18-2-60 passed an order directing that the lands be handed over to the second party, observing that the lands were eventually attached from that party and consequently they should be restored to them. Against this order, the 1st party moved the Sessions Judge who has made this reference for setting aside that order.

(3.) It has been decided by this Court in some decisions that if, after the commencement of a new proceeding under Section 145 Cri. P. C. the Magistrate is satisfied that there is no apprehension of a breach of peace he may be entitled to drop the proceeding and pass such ancillary orders as may be necessary for the disposal of the attached property : see Baidyanath v. Kunja Behari, 22 Cut LT 435, Dasa Mohanty v. Gadadhar Samal, 23 Cut LT 37 : (AIR 1957 Orissa 92) and Mathrui Mallik v. Satrughna Girl, 25 Cut LT 340 : (AIR 1959 Orissa 81). But as pointed out in the last decision the Magistrate should not resort to the device of dropping the proceeding merely with a view to evade his responsibility to decide the dispute and pass final orders in favour of either party or if circumstances so justify it, make a reference to the Civil Court as provided in Section 146, Cri. P. C. By merely dropping the proceeding, the evil day is only postponed because there may again be apprehension of breach of peace and the Magistrate may again have to start a fresh proceeding under Section 145 Cri. P. C. and go through the entire process, causing not only inconvenience to himself but also harassment to the parties concerned. Doubtless, if he is fully convinced that the parties are not likely to commit breach of peace in respect of the disputed property, his jurisdiction to continue the proceeding under Section 145 Cri. P. C. terminates and the proceeding must be dropped or cancelled as permitted by Sub-section (5) of Section 145, Cri. P. C. But this step should not be used as a device to enable the Magistrate io summarily dispose of a long pending case.