DHANBAR ALI Vs. HARIPADA SAHA

JUDGEMENT

(1.) THIS is a Criminal Reference under Section 438 of the Criminal Procedure Code directed against an order dated 14 -7 -1973 passed by Shri B. K. Das, Magistrate. 1st Class in a proceeding under Section 145 of the Criminal Procedure Code finally disposing of the case in favour of the First party to the proceeding. The grounds on which the reference has been made by the learned Sessions Judge are all questions of facts and they are as follows: -

(2.) I have heard the parties at length, Mr. B.K. Deka, the learned Counsel appearing in support of the reference has very fairly submitted that the order of reference is not in proper form as it deals entirely and exclusively with question of facts and the learned Counsel has tried to mould the question of facts into law and has made every endeavour to show and establish that in fact the learned Magistrate did not comply with the provisions contained in Section 145 (4) and (6) of the Criminal Procedure Code, 1808. The learned Counsel has added some more points in support of the reference. The learned Counsel has added that in support of the possession the second parties have filed some documents, namely, (1} some Touzi Bahira Receipts, (2) a certificate issued by the President of the Town Committee Sri Rataneswar Das. who was also a deponent in favour of the Second Parties and (3) some copies of the depositions of the parties containing some admissions in connection with a Criminal Case under Sections 448 and 427 of the Indian Penal Code; but the learned Magistrate did not take into consideration any of the documents and in fact, has overlooked to consider the effect of these documents The learned Counsel has further submitted that the impugned order allowing a passage of 6 feet in favour of the Second Party and the existence of the wooden structure of the Second Party are indicative of the fact that the opposite parties were in possession of the land on the date of the drawal of the proceeding.

(3.) I have considered the arguments advanced by the parties and perused the records and I do not feel that I should express any opinion regarding any of the findings of facts inasmuch as I have decided to remand the case to the trial Court for due disposal of this proceedings in accordance with law. It is undoubtedly true that a proceeding of this nature can very aptly be described as a "Police order". The object of such proceedings is to prevent breach of peace. There is not the least doubt about the fact that it is a summary proceeding and by virtue of such an order neither the title nor the right to possession of any land is declared. Such an order ordinarily determines as to which of the parties was, at the date of initiating the proceeding, in possession of the land in question. It may very well be said that it is not final determination of the right of the parties. But in any view of the matter, what is the effect of such an order? When such an order is made against a party, he is deprived of the right to enjoy his property and dispossessed of the same until after his rights are finally determined by a Civil Court of competent jurisdiction. The position, as it stands to day is that when a determination is made under Section 145 against the party, it takes a good number of years for the aggrieved party to get back possession. In some cases the aggrieved party does not get back possession during his lifetime but his heirs and successors who pursue the matter to get back the possession. This being position, as it stands today, the importance of a proceeding under Section 145 and its declaration cannot be undermined bearing it in mind that a proceeding of this nature determines the right in respect of an immovable property a very valuable right. Under these circumstances, before disposing of a proceeding of this nature I feel that it is the duty of the trial Court to make every effort to follow the mandatory provisions laid down under Section 145. In my opinion, the procedures laid down in Section 145 should be very carefully followed and if they are not followed or overlooked it must be held that the actions of the Trial Court are without jurisdiction. The procedures laid down under Section 145 contains not only procedural right but certain substantive rights as well and they have integral connection with the enjoyment of immovable property. In the instant case the parties are fighting out their case over "a very precarious right." The land in dispute is a Khas land. But in spite of the nature of the right, it is a right to property and should not be dealt with lightly by the trial Court.