KSHETROMONI PANDA Vs. RAGHUNATH PATNAIK

JUDGEMENT

(1.) THIS is a revision against an order of Sri R. N. Dhal Samanta, Magistrate,Ghumsur Russelkonda, dated 30 -5 -51, passed under 145, Criminal P. C., confirming the possession of the members of the 1st party. The learned Court below finds possession in favour of the 1st party relying upon quite a number of documents in respect of possession and the oral evidence of the witnesses whom he characterises as independent witnesses.

(2.) MR . H. Mohapatra, appearing on behalf of the petitioners, draws my attention to the preliminary order passed on 9 -10 -50. In the preliminary order, the Magistrate finds that he is satisfied that there is a dispute in respect of the immoveable properties between the parties leading to the likelihood of breach of the peace as appears from the police report dated 23 -8 -49. Mr. Mohapatra contends that the police report being more than 13 months before the preliminary order was passed, the preliminary order is illegal and without jurisdiction inasmuch as it was based upon no material that there was any likelihood of breach of the peace at the date when the preliminary order was passed. He very strongly relies upon the decision of the Calcutta High Court reported in - - 'Anadilal v. Sughchand', A.IR. 1930 Cal. 715 (A) where the principle has been very clearly laid down that for making an order starting proceedings under section 145, Cr. P. C. it is necessary that the Magistrate should be satisfied at the time of drawing up such proceedings that there is then existing likelihood of breach of the peace arising from disputes between parties as to possession of the land in question. There the order based solely on a police report over six month old was held to be illegal in the absence of anything to show that the conditions existing at the time of the police report were existing at the date of the order. It is absolutely clear from the provisions of Section 145 that it is only the likelihood of breach of the peace that gives jurisdiction to the Magistrate to draw up proceedings under Section 145 : otherwise the mere existence of a dispute between the parties regarding immoveable properties is a matter which is within the jurisdiction of the Civil Court and does not come within, the jurisdiction of the Magistrate. It is obviously clear in the present case that the police report having been old for more than 13 months prior to the date of the preliminary order, it can be said in the eye of law that there was nothing to show the existence of the likelihood of breach of the peace on the date when the order was passed. Therefore, the order, according to Mr. Mohapatra, is one without jurisdiction and as such, the whole proceedings subsequent to the order must be quashed as being illegal and vitiated. He has further relied upon another decision of the Calcutta High Court reported in - - 'Jnanendra Narayan v. Samed Molla', A. I. R. 1943 Cal 559 (B). The self -same principle was examined once more by their Lordships and was enunciated in more emphatical and clear language. There the police report was dated 1 -11 -40. The proceedings were started on 12 -8 -41. Their Lordships found that the foundation of the proceedings under Section 145, Criminal P. C., is the existence of a danger to the public peace and the need of urgency in dealing with it by the Magistrate as responsible for the preservation of the peace, preparatory to the disputes of the parties being taken before the Civil Courts. It is really difficult to reconcile the course of events in the present proceedings with this conception which, in my opinion, is also fundamental conception and goes to the very root of the jurisdiction of the Court. I may also refer to a decision of the Patna High Court of Bucknill J. in the case of - - 'Cheddilalv. Mahabir Prasad', A. I. R. 1921 Pat 445 (0). His Lordship observes

(3.) MR . Pal has referred to a Full Bench decision of the Allahabad High Court reported in - -