MAHJIDDEN KHATUAN Vs. JALLALUDDIN MIAN

JUDGEMENT

(1.) THE first revision is directed against the order dated 18th of March, 1977, passed by an Executive Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'). By the impugned order, the learned Magistrate recalled an interim order of attachment made on 5 -2 -1977 of the disputed property and dropped the proceeding under Section 145 of the Code though nowhere did he indicate that he was satisfied that there was no apprehension of breach of the peace. The first party in that proceeding has therefore, filed the revision application challenging the impugned order of 18th of March, 1977 and two grounds have been advanced. Firstly, in view of the provisions in Sub -section (1) of Section 146 of the Code, once there is an attachment, the Magistrate becomes functuts officio and the attachment has to subsist until a competent Court determines the rights of parties to the disputed property. Therefore, after the order was made au 5 -2 -1977 attaching the property, the proceeding should have normally come to an end and the learned Magistrate has no jurisdiction to continue the enquiry. Alternately it is contended that if the jurisdiction was being exercised under the Proviso to Sub -section (1) of Section 146 of the Code, the learned Magistrate was bound to indicate his satisfaction that there was no longer any likelihood of breach of the peace with regard to the subject matter of dispute before he withdrew the attachment.

(2.) CRIMINAL Revision No. 238 of 1977 is directed against the final order is a different proceeding under Section 145 of the Cede in regard to the very same property and parties are also common. The local police submitted a report for initiating a proceeding under Section 107 of the Code against the parties and on 10 -12 -1976, the learned Magistrate directed notice to issue to members of the second party to show cause as to why each of them may not be ordered to execute a bond for rupees one thousand with one local surety for the like amount to keep peace for a period of one year. After cause was shown, on 28th of April, 1977, the learned Magistrate directed that the proceeding under Section 107 of the Code may be converted to one under Section 145 of the Code. It may be noted that both the proceedings under Section 145 of the Code which are being dealt with in this case were before the same Court. No preliminary order under Section 145( 1) of the Code was made when the proceeding was converted. Though the proceeding was initiated after ,the new Code of Criminal Procedure had come into force, the learned Magistrate disposed it of in a summary way without recording evidence. It is contended that in the absence of the preliminary order which alone gives jurisdiction to the Magistrate to investigate into the claim of possession, the proceeding was not maintainable. It has also been contended that there has been no enquiry as provided by law and the learned Magistrate has exercised jurisdiction in a high -handed way forgetting the statute and the procedure indicated therein for dealing with a matter of this type.

(3.) I am surprised to find that no preliminary order was drawn up by the learned Magistrate when he converted the proceeding under Section 107 of the Code of one under Section 145 . Under Section 145 of the Code, possession has to be determined with reference to the preliminary order, unless it is a case of dispossession, in which event possession sixty days prior to the date of the order becomes material. It is well settled that jurisdiction to investigate into claims of possession depends upon a valid preliminary order and in the absence of a preliminary order, the proceeding becomes non -maintainable.