MOHAMMAD KUBAT ALI Vs. PINJIRA BEGUM

JUDGEMENT

(1.) This Criminal Revision is preferred by the petitioners under the provisions of S. 482 of the Code of Criminal Procedure, 1973 and under Art. 227 of the Constitution of India against the preliminary order so passed by the learned Additional District Magistrate, Kamrup, Guwahati on 3-6-94 in Case No. 231M/94 drawing up a proceeding u/S. 145(1), Cr. P.C. initiating a proceeding u/S. 145, Cr. P.C. between the parties relating to the land in question, i.e., 3 Bs 2 Ks 9 Ls of cultivable land covered by Dag No. 536 of KPP No. 863 situated at Village Saniadi, Mouza Ramdia, PS Hajo in the District of Kamrup, Assam bounded by - North Md. Habib Rahmah, North Md. Sahar Ali, East Road and West Md. Burah Ali.

(2.) Heard Mr. B. Ullah, learned counsel for the petitioner and Mr. J. Ahmed, learned counsel for the opposite party.

(3.) The petitioners in this Criminal Revision Petition figured as the members of the second party in the said 145 proceeding. On behalf of the petitioners it is submitted that the impugned order initiating a proceeding u/S. 145, Cr. P.C. is had in law because before the learned Court below there was no sufficient material as to initiate the proceeding in question. It is further pointed out that the dispute between the parties is of a civil nature and without calling for the police report mechanically, the impugned order was passed, which has caused great prejudice to the petitioners. It is further pointed out that if there is a dispute between private individuals and even if there is likelihood of breach of peace on that score alone a proceeding u/S. 145, Cr. P.C. is, not expected to be initiated unless the Magistrate is satisfied that they apprehended breach of peace as to disturb the public tranquility. In the instant case, as submitted by the learned counsel for the petitioners, the learned Court below has not even taken the care as to determine whether there was likelihood of any disturbance of public tranquility. Furthermore, it is argued that it was incumbent on the part of the learned Court below as to assign reasons for his satisfaction which led him to pass preliminary order u/S. 145(1), Cr. P.C. In this back ground it is submitted that the impugned order is also silent on this score. Lastly, it is submitted that the learned Court below has committed another error by passing a composite order on the same day, i.e., on 3-6-94 also by attaching the land in proceeding under the provisions of S. 146(1) of Cr. P.C. when there was no such emergency. In support of his contention made above, the learned counsel for the petitioners claimed himself to be fortified with three of the reported cases so cited and they are - (1) (1986) 2 Gauhati LR 167 (2) 1991 Cri LJ 1556 (Kant) Shankarlal v. Alhaz Khaja Abdul Hussain and (3) 1991 Cri LJ 1769 (Gauhati) (Ashok Kumar Ghose v. Khetra Mohan Das). Lastly, it is also submitted that the dispute between the parties is of civil nature and since it was difficult for the opposite party as to get an injunction order from the Civil Courts, therefore in the garb of the provisions of S. 145, Cr. P.C., a petition was so filed by the opposite party members figuring as the member of the first party in the said proceeding.