DIRGOPAL SINGH Vs. RAMBRICH SINGH

JUDGEMENT

(1.) This is an application made to set aside an order passed in a proceeding Under Section 145, Criminal P. C. The facts are that an Assistant Sub-Inspector of Police reported to the Sub-divisional Magistrate of Bihar that the chaukidar of village Mathura had made a report at the police station that certain persons were obstructing the ploughing of the field of Dukhit Singh, and that hence there was an apprehension of a breach of the peace, and that, in consequence of this, he, the Assistant Sub-Inspector, had been sent to the village by the Officer-in-charge of the police Station. The Assistant Sub-Inspector proceeded to state that he went to the village and asked the parties not to quarrel and to produce before him the evidence relating to their possession. Both the parties did this. The Assistant Sub-Inspector ended with a suggestion that notices Under Section 144 of the Code should be issued to both parties. The Sub-Divisional Magistrate issued notices against both parties on 21-7-1947, restraining them from going to the land in dispute and calling upon them to show cause why the prohibitory order should not be made absolute. Both parties appeared and filed written-statements in which each of them denied that he was likely to commit a breach of the peace, but asserting that his opponent might do so. On 10th September, the Magistrate decided to convert the proceeding into one Under Section 145, and issued a notice to each party that from the police report and from the show-cause petitions he was satisfied that a bona fide dispute relating to possession of the land in question existed between the parties, and he, therefore, required them to appear in his Court and put in their written-statements regarding possession over the subject-matter of the dispute. Thereafter, evidence in the case was heard, and the order complained of was made. The order is challenged on the ground that the Magistrate has nowhere recorded that he was satisfied of the existence of a dispute likely to lead to a breach of the peace. He did not state so in the notice which he issued to the parties, nor record it in the order-sheet, and his final order makes no mention of the existence of a dispute likely to occasion a breach of the peace. It is, therefore, argued that, although the Magistrate may have been satisfied that there was a bona fide dispute with regard to possession between the parties, there is no indication that he was satisfied that that dispute was likely to occasion a breach of the peace.

(2.) Section 145 of the Code provides that whenever a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class is satisfied that a dispute likely to cause a breach of the peace exists concerning any land, he shall make an order in writing stating the grounds for his being so satisfied. The statute, therefore, quite clearly requires that the Magistrate shall be satisfied of the existence of a dispute likely to occasion a breach of the peace and requires him to make an order in writing, stating the grounds for his being so satisfied It is contended on behalf of the opposite-party, however, that the omission of the Magistrate to record that he is satisfied that the dispute between the parties is likely to occasion a breach of the peace is a mere irregularity to which Section 537 of the Code applies, and reliance is placed on the decision of a Full Bench of the Allahabad High Court in Kapoor Chand v. Suraj Prasad, 55 ALL. 301 : (A. I. R. (20) 1938 ALL. 264 : 34 Cr. L. J. 414 F. B.). The facts of that case were that one Suraj Prasad filed a petition Under Section 145 of the Code alleging that his master Chunni Lal was in possession of a house, and that the opposite party were trying to interfere with that possession, with the result that there was likely to be a breach of the peace. The Magistrate took down the statement of Suraj Prasad on oath, and directed a police enquiry into the matter. On receipt of the police report he recorded the following order : "There appears to be some basis for this complaint, to judge from the police report." The case was then transferred to another Magistrate, who issued notices Under Section 145 to both parties without recording that he was satisfied that the dispute between the parties was such as might lead to a breach of the peace. The opposite party, however, when he appeared before the Magistrate raised this point, and the Magistrate, on the evidence that was adduced before him, came to the conclusion that there was a likelihood of a breach of the peace. The final order that was passed in that case was challenged on the ground that the Magistrate had not recorded his satisfaction with regard to the likelihood of a breach of the peace prior to the institution of the proceedings or in the notice to the parties. The Full Bench took the view that the omission to do this was covered by Section 537 of the Code. They drew a distinction between a case in which a Magistrate is not satisfied regarding the existence of a likelihood of a breach of the peace before initiating the proceedings and a case in which although satisfied, he has not recorded that he is so satisfied. This is quite clear from the following observation :

(3.) One of the learned Judges of the Full Bench case, King J., subsequently became Chief Justice of the Chief Court of Oudh. A decision of King C. J., in B. B. Asghari Khanam v. Emperor, 11 Luck. 157 : (A. I. R. (22) 1935 Oudh 316 : 36 Cr. L. J. 656) was also relied on by the opposite party. In the course of the judgment in that case the learned Chief Justice observes that it must be conceded that a Magistrate cannot take action Under Section 145 unless he is satisfied regarding the existence of a dispute likely to cause a breach of the peace, and the mere fact that a Magistrate issues an order Under Section 145 (1) would not necessarily lead to the inference that the Magistrate was satisfied regarding the existence of a dispute likely to cause a breach of the peace. In that case the proceedings stated on the complaint of one Ragho Ram who applied to the Sub-divisional Magistrate for action Under Section 145 stating that he had been in possession of the land in dispute for some years, that he had sown the kharif crop during the current year and that on the 7th July certain of the opposite parties came to the land armed with lathis and tried to turn him out by force. He also alleged that on the 23rd of July when he went to the field to weed the crop the opposite party appeared armed with lathis and prevented him forcibly from weeding the crops and threatened to kill him if he did not desist from cultivating the plot in dispute. The Magistrate took down the statement of Ragho Ram on oath and the latter supported the allegations which he had made in his complaint. Thereupon the Magistrate issued an order directing the issue of notices Under Section 145 (1) and calling upon the parties to put in their written-statements, but without recording the fact that he was satisfied that the dispute between the parties was likely to occasion a breach of the peace. The learned Chief Justice held that this omission was a mere irregularity. I am not so sure myself that the omission to comply with the express direction, of the statute that the Magistrate shall make an order stating the grounds on which he is satisfied that a dispute likely to occasion a breach of the peace exists can be treated as a mere irregularity. But, for the purposes of this case, assuming it to be so, the question still remains whether the materials before the Magistrate were so coercive that it should beheld that he must have been satisfied that the dispute was likely to occasion a breach of the peace, although he has not recorded that he was so satisfied. Unlike the two cases to which reference has been made, there was no statement on oath before the Magistrate. All he had before him was the report by an Assistant Sub-Inspector of Police in which the only reference to the existence of a dispute likely to occasion a breach of the peace was the statement of a. chaukidar, that is to say hearsay evidence. He had, of course, before him also the written-statements which the parties filed in the proceeding Under Section 144. In these statements, however, both parties disclaimed any intention of committing a breach of the peace, although purporting to be apprehensive that their opponents might do so. It may well be, in these circumstances, that the Magistrate, while being satisfied as to the existence of the dispute, waft not prepared to accept the allegations that the opposite party was likely to cause a breach of the peace. In fact, the language of the notice issued to the parties in this case indicates either that the Magistrate was oblivious of the necessity of being satisfied that the dispute was one likely to occasion a breach of the peace or that from the materials before him, all that he was satisfied about was that a bona fide dispute-existed. Even after hearing the evidence of the parties his order makes no reference to any evidence that was before him of the likelihood of the dispute leading to a brerach of the peace and does not state that he had come to any such conclusion. In the circumstances, I must hold that the Magistrate had no jurisdiction to enquire into this complaint in view of the absence of any reason to suppose that he was satisfied that the dispute before him was such as to be likely to lead to a breach of the peace. The order is, therefore, set aside. The Magistrate will, of course, be entitled to start a fresh proceeding if he is now satisfied that there is between the parties a dispute that is likely to lead to a breach of the peace.