ANANDA SETHI Vs. BAURI SAHU AND 4 ORS.

JUDGEMENT

(1.) ON 11th June, 1966, the Magistrate passed the preliminary order under Section 145(1), Code of Criminal Procedure and fixed the case to 21st of July, 1966 for filing of written statements, documents and affidavits, if any. Parties appeared on that day and applied for time for filing written statements and documents. The case was adjourned to 26th of August, 1966 and 30th of September, 1966. On both these dates, both parties applied for time alleging that they had not procured documents to enable them to file their written statements. The case was fixed to 17 -11 -1966, when the Magistrate passed the following order:

(2.) THE only question urged by Mr. Misra is that in the absence of a finding that a dispute likely to cause breach of peace ceased to exist, the learned Magistrate should not have dropped the 145 proceeding. This contention requires careful examination of the scope and ambit of Section 145, Criminal Procedure Code. The scheme of the section in short may be noticed. Under Sub -section (1) when the Magistrate is satisfied from a police reporter other information that a dispute likely to cause a breach of the peace exists concerning any land, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claim as respects the fact of actual possession of the subject of dispute.

(3.) THE controversy centres round the question whether the Magistrate is to draw the inference that there was no further apprehension of breach of the peace regarding the subject matter of the dispute, where the parties appeared in response to a notice issued under Sub -section (1), but did not file their written statements, affidavits or documents. No simple answer can solve the aforesaid problem. There may be cases where the parties are negligent and do not take steps though their dispute continues and necessarily the apprehension of breach of the peace continues. In such cases, it cannot be said that such dispute has ceased to exist. There may be other cases where such inference can legitimately be drawn. The real test in all such cases is whether the only reasonable inference would be that the dispute has ceased to exist. One such case is to be found in Muhammad v. Gulzar, A.I.R. 1940 Sind. 51. The facts of that case were that the parties appeared before the Magistrate, took time from date to date saying that there was a talk of compromise and ultimately they absented from Court. Their Lordships held that the only legitimate inference was that dispute had ceased to exist and therefore there was no apprehension of breach of the peace. In exercise of his powers sou motu the Magistrate in such case was justified to drop the proceeding. On the other side of the line is to be found a case discussed in Sargala Pitchamma v. Lakshmi Narasamma : A.I.R. 1959 A.P. 425. The facts are not very clear from the judgment, but it seems, parties had appeared, filed their written statements, affidavits and documents but merely absented themselves at the time of hearing. The learned Single Judge in a thoroughly well -discussed judgment came to the conclusion that from the facts of that case the only legitimate inference that such dispute had ceased to exist could not be drawn. Thus the conclusion would vary according to the facts of each case and no hard and fast rule can be laid down.