ABDUL SAYEED KHAN Vs. JAGARNATH NONIA

JUDGEMENT

(1.) THE facts of this case are as follows. THE two members of the opposite party and another person filed a petition before the Sub-divisional Magistrate of Nawadab, by which they prayed for an order directing the present petitioners not to disturb them in thrashing the crop and to allow them to take their legal share of the grains after giving due receipt for that. THE police was ordered to enquire into the matter and to report on receipt of the report, on the 30th of May, 1963. Proceedings under Section 144, Code of Criminal Procedure, were started against both the parties restraining them from going over the Khalihan where the gathered crops were stored. On the 26th of July, 1962, these proceedings were converted into one under Section 145 of the Code and both the parties were asked to file papers to show the details of the land from which the crops had been harvested so that their claim could be decided once for all. THE Punjis in question were attached and they were ordered to be put to sale by auction. It further appears that on the 24th of September, 1962, there was another order saying. Start proceedings on the basis of the schedule of land given by the let party as I am satisfied that there is apprehension of breach of peace between both the parties, Let the parties file W. S., affidavits and other things in support of their claim of possession. THEreafter, written statement and affidavits were filed and on the 26th of September, 1963, final orders were passed by the Magistrate holding that the first party, viz., the opposite parties here, were in possession of the lands in question. Against that, the Sessions Judge was approached by the present petitioners without any success and the present application was filed in this Court on the 28th of July, 1964.

(2.) IT appears, the basis of the impugned order was the proceeding that was started afresh on the 24th of September 1962, though the Magistrate observed that day in his order sheet that he was satisfied that there was apprehension of breach of the cease between the parties, be did not mention as to from which source he had information to give him satisfaction of the apprehension of breach of the peace. A Magistrate can only act under Section 145, Code of Criminal Procedure, provided he is satisfied from the police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water In the present case neither the older passed on the 31th of September, 1962. nor anything on record disclosed the source of any such information to the Magistrate. Mere filing of a schedule of lands by one party does not give to the Magistrate jurisdiction to start proceedings under Section 145 of the Code. Learned Counsel appearing for the opposite party contended that the present proceedings were a continuation of the previous proceedings which had been initiated on the 26th of July, 1962. If it were so, then the Magistrate would not have ordered to start proceedings afresh on the 24th of September, 1962, In my view, the entire proceedings have been vitiated by lack of jurisdiction which was assumed wrongly by the Magistrate on the 24th of September, 1962, without having any material before him that there was any apprehension of breach of the peace, arising out of a dispute in regard to any immovable property.

(3.) ANOTHER thing noticeable in this case is that the Magistrate took into consideration the two police reports and a report by the Anchai Adhikari, although such reports were not sworn to or the makers of those reports were not examined before the Court. Section 145, Criminal P. C., authorises the Magistrate to require the parties to put in such documents or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of their respective claims. The documents, viz., the reports by the police officer or the Anchal Adhikari, were not produced by any of the parties. The scheme is to enable the Magistrate to decide the question of possession on sworn affidavits or on evidence of persons who may be examined as provided under sub Clause (9) of Section 145. Documents are also permissible to be put in by the parties in support of their claim. This, however, does not bring in enquiry reports by some police officers or other officers.