SARAT NATH Vs. DIGENDRA NATH

JUDGEMENT

(1.) THE Addl. Sessions Judge, Tripura, by his order dated 15th December, 1970 made this reference under Section 438 Criminal Procedure Code recommending for setting aside the final order dated 7 -2 -68 passed by the Magistrate, 1st Class, Dharmanagar in Misc. Case No. 38 of 1967, a proceeding under Section 145 Criminal Procedure Code in the following circumstances : - On 28 -5 -67 one Shri Sarat Nath, 1st party, gave a report to the Officer -in -Charge, Dharmanagar Police Station that he is in possession of the lands of an extent of 31/2 Kanis in Jote Nos. 127 and 139 in mouza Rajnagar and that Digendra Nath and his five other associates 2nd party respondents herein are claiming possession of the same and that there is an apprehension of breach of peace as they are attempting to take forcible possession of the said land. After making necessary enquiries the Officer -in -charge, Dharmanagar Police Station has sent up a report to the Magistrate 1st Class Dharmanagar stating that there is an apprehension of breach of peace in respect of possession of 31/2 kanis of land in jote Nos. 127 and 139 between the two parties. It is also reported that it is not possible to decide as to which of the parties is in possession of the land in question. Being satisfied that there is a likelihood of breach of peace in respect of the land in dispute as a result of the rival claims put forward by the two parties, the 1st Class Magistrate Dharmanagar started proceedings under Section 145, Criminal Procedure Code passed a preliminary order on 7 -6 -67 and directed both parties to file their written statements, affidavits, documents, if any in support of their rival claims by 30 -6 -67. On 7 -6 -67 itself the Magistrate has also ordered attachment of the land till the disposal of the case.

(2.) THE second party filed a statement alleging that the land mentioned in the preliminary order is not in existence, that the boundaries given therein do not tally, and that in respect of the land attached there is no dispute as it is not in existence. It is further alleged that the area of the land in the proceedings would not be less than 6 kanis and that they have been in possession of the said 6 kanis of land. After hearing the arguments the learned Magistrate passed the final order on 7 -2 -68 recording a specific finding that the land described by the 1st party in respect of which the preliminary order was issued is not in existence. However, accepting the contention of the 2nd party that the land in their possession is the subject -matter of the proceedings under Section 145 Criminal Procedure Code and that the members of the 2nd party are in possession of the same the learned Magistrate ordered that Haribal Nath a member of the 2nd party is entitled to retain possession of that land till he is ousted in due course of law. The learned Magistrate made it clear that the land in question is tilla land. Having felt aggrieved by the said order Shri Sarath Nath, the 1st party preferred Criminal Revision Petition 77 of 68 in the Court of Sessions Judge Tripura and by his order dated 15 -12 -70 the learned Addl. Sessions Judge made a reference to this Court for setting aside the final order of the learned Magistrate.

(3.) AT the very out -set Mr. Chakraborty learned counsel of the 2nd party has rightly conceded that the final order passed by the Magistrate is contrary to law and cannot be allowed to stand. The proceedings under Section 145 Criminal Procedure Code were started and a preliminary order was issued under Sub -Section (1) of Section 145 Criminal Procedure Code in respect of 31/2 kanis of tilla land of which a portion is stated to be lunga land. The said land in dispute is described by specific boundaries. It may be stated here that on the very day on which the preliminary order was passed the land was ordered to be attached. The learned Magistrate having found that the said land is not in existence and in view of the fact that the members of the 2nd party do not claim possession of that land and contended that there is no dispute regarding that land which is not in existence the only order that could have been passed in the circumstances is to drop the proceedings under Sub -Section (5), of Section 145 Criminal Procedure Code and to cancel the preliminary order issued earlier. The learned Magistrate has no jurisdiction to pass an order of the nature contemplated under Sub -Sections (4) and (6) of Section 145 Criminal Procedure Code in respect of some other land specified by the 2nd party for which there were no proceedings under Section 145 Criminal Procedure Code While the preliminary order was issued in respect of only 31/2 Kanis of land within the specified boundaries mentioned therein the final order is passed in respect of 6 kanis of tilla land the boundaries of which are not specified by the Magistrate in his order. Needless to emphasise that a Magistrate has no jurisdiction to pass a final order in respect of a larger extent of land than what is mentioned in his preliminary order issued under Sub -Section (1) of Section 145 Criminal Procedure Code or in respect of land which is not the subject -matter of proceedings under Section 145 Criminal Procedure Code If on the material on record the Magistrate entertains any doubt that the 1st party has given a wrong description of the land both in respect of the extent as well its boundaries the proper procedure for the learned Magistrate is to make a local inquiry as Sub -Ss. (4) and (6) of Section 145 Criminal Procedure Code and ascertain the identity of the land in dispute and if it tallies with the land specified in the preliminary order he would be competent to pass a final order contemplated under Sub -Ss. (4) and (6) of Section 145 Criminal Procedure Code If on local enquiry he finds that the land in respect of which proceedings were started under Section 145 Criminal Procedure Code is not in existence or the same could not be localised and that the dispute is really in respect of some land other than the land for which the preliminary order under Section 145(1) Criminal Procedure Code was issued he had no jurisdiction to pass any order contemplated under Sub -Sections (4) and (6) of Section 145 Criminal Procedure Code