AMARNATH RULA RAM Vs. KANWAR JOGINDER SINGH

JUDGEMENT

(1.) SHRI Amar Nath and two others have filed the present petition under Section 482 of the Code of Criminal Procedure, They have asked for quashing the proceeding under Section 145 of the Code of Criminal Procedure instituted against them upon complaint of one Kr. Joginder Singh. The learned Sub-divisional Magistrate Rampur by his order dated 5-10-1974 passed the preliminary order and summoned the respective parties to put in their written statements and evidence as he found apprehension of a breach of the peace in respect of a certain parcel of land in village Sainj, Kotgarh. According to petitioners an abuse of process of Court has resulted and so inherent jurisdiction of the High Court ihould be exercised to correct the mistake, This is how Section 482 has been applied. It is stated that the order of the Magistrate is without jurisdiction because he has not recorded any ground for his satisfaction as to breach of the peace. It is also stated that a civil suit was filed by the petitioners and a temporary injunction was obtained from the Court of the Senior Subordinate Judge, Simla and that would disentitle a proceeding under Section 145.

(2.) AT the very outset, the order of the Magistrate was interlocutory order within the meaning of Section 397 (2) of the Code of Criminal Procedure, 1973. No revision can be filed against that interlocutory order. With that prohibition on the Statute, Section 482 is being availed of. What has been prohibited under Section 397 (2) cannot be held to be permissible under Section 482 of the Code of Criminal Procedure and the High Court will only interfere in an extraordinary case where special circumstances are made out which rendered the order inherently illegal so that an abuse of the process of the Court is prima facie made out. Such a case apart, there will he no interference when especially a revision is prohibited under the statute. The order of the Magistrate prima facie is correct and hardly any extraordinary circumstance is made out to invoke the in- herent Jurisdiction. If that order could not be revised against, how can the Court set aside that order in exercise of inherent jurisdiction, under Section 482.

(3.) THE learned Counsel then attempted to show that the order of the Magistrate was inherently wrong and even stated that it was without jurisdiction. I have gone through the enquiry report dated 4-8-1974 by the Police. It is a detailed report by the Station House Officer, Kumarsain and refers to both documentary and oral evidence. The learned Magistrate in his preliminary order stated that he perused that report and applied his mind to the facts stated therein, Thereafter he arrived to his satisfaction as to the breach of the peace. In my opinion it was enough for requirement under Sub-section (1) of Section 145, It was not necessary for the Magistrate to have repeated mechanically all that was stated in the police enquiry. It is enough that he applied his mind and recorded his satisfaction. The order reveals that the enquiry report was perused, considered and the opinion was formed based on it. Had there been a case where the Magistrate mechanically reproduced the language of subsection (1) of Section 145 without applying his mind, the position under law may have been different and in that case it could be held that he did not apply his mind nor stated his grounds for being so satisfied that a breach of the peace existed concerning any land. In the present case the grounds were already stated in the preliminary order. Reliance in that connection was placed on Bisse Gowda v. State of Mysore (1969 Crl LJ 1170) (Mys ). In that case the facts were different and I respectfully do not agree with the view expreseed by the learned judge. The facts of the present case are much too clear and in my opinion the grounds were stated in the preliminary order. In fact the enquiry report is so much detailed that no exception can be taken to the order, because the Magistrate applied his mind and decided in favour of issuing the preliminary order. As such the order of the Magistrate was prima facie correct. It is hardly a case for exercise of inherent jurisdiction.