NEWA LAL SHARMA Vs. BIKKU SHARMA

JUDGEMENT

(1.) Both these revision applications have been heard together, with the consent of the parties, as they arise out of the same order passed by the learned Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure, and this judgment will govern them both.

(2.) Criminal Revision No. 78 of 1969 has been filed by the sole member of the third party and Criminal Revision No. 153 of 1969 has been filed by both the sets of the fourth party to the proceeding. First party Bikku Sharma and second party Bhumi Sharma are cousins inter se, being the grand-sons of two brothers Baburam and Dattu, and they had really got the proceedings started. As a matter of fact, there was no Police report in this case about any apprehension of a breach of the peace because of the dispute regarding possession of immovable property. No party had filed any petition before the Magistrate that there was an apprehension of a breach of the peace and a proceeding under Section 144 or 145 of the Code of Criminal Procedure should be started. The Sarpanch of the Gram Cutcherry, in agreement with the Mukhiya, with whom, perhaps, the first party was on bad terms, filed a report before the learned Sub-divisional Magistrate that there was an apprehension of a breach of the peace between the two parties concerning some land, and so the learned Magistrate initiated a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). That proceeding was started on the 21st February, 1966. The Sarpanch, in his report, stated that a partition suit, being suit No. 38 of 1965, was pending between the parties in the Court of the Subordinate Judge, Monghyr. On the 11th March, 1966, the first party filed a petition before the learned Magistrate requesting him to drop the proceeding under Section 144 and to start a proceeding under Section 107 of the Code against the second party. The learned Magistrate found that the grounds mentioned in the petition were not satisfactory and so he disallowed this prayer. On the 6th April, 1966, Newa Lal Sharma filed a petition before the Magistrate stating that portions of the disputed lands were in his possession and in possession of his nephew, Bachoo Sharma, and so he prayed to be added as a party to the proceeding. On the same day, Hirdi Sharma and Jantri Sharma filed a petition before the Magistrate for being added as parties on the ground that they were in possession of certain lands included in the subject-matter of the proceeding. The learned Magistrate, after hearing the parties, directed that the applicants be added as parties to the proceeding, and on the same day he passed the following order converting the proceeding under Section 144 into one under Section 145 of the Code.

(3.) Learned Counsel appearing on behalf of the third and fourth parties, the petitioners in the two revision applications, have made a common ground of attack against the impugned order of the learned Magistrate to the effect that he has not followed the mandatory provisions as contained in Section 145 (1) of the Code. According to them, the Magistrate had no jurisdiction over the subject matter of dispute because there was no apprehension of a breach of the peace. The order of the learned Magistrate, dated the 6th April, 1966, converting the proceeding under Section 144 to one under Section 145 of the Code, already quoted, obviously does not indicate that the Magistrate initiated the proceeding under Section 145 of the Code because there existed a dispute likely to cause a breach of the peace concerning any land. A number of decisions have been cited before me, most of which were discussed and considered by me in the case of Sukhdeo Singh v. Prabhawati Devi, Criminal Revn. No. 623 of 1967, D/- 14-11-1968 (Pat). Apart from those decisions, which have been discussed in that judgment, my attention was drawn to a recent case of the Supreme Court, R.H. Bhutani v. Miss Mani J. Desai, AIR 1968 SC 1444. If I may say so, I may summarise the decisions of Various Courts in the following words:-- (i) If a competent Magistrate has mentioned in his order that there was an apprehension of a breach of the peace because of some dispute concerning immovable property, the sufficiency of the grounds cannot be challenged in higher courts. The Magistrate is concerned with the peace within the local limits of his jurisdiction, and if he is satisfied, on the materials before him, the sufficiency or otherwise of those materials should not be gone into, because the matter is of subjective satisfaction of the Magistrate. (ii) If the Magistrate has. not mentioned in his order that he is satisfied from a police- report or other information that a dispute likely to cause a breach of the peace exists concerning any land etc., a question arises whether there should be any further inquiry, or the sole ground of non-mention of the reason of his satisfaction should be suffi cient to set aside his order concerning that proceeding. The trend of decisions in this matter is that a revisional Court can look for itself whether the materials present before the Magis- trate necessarily led to the conclusion that in fact, there was an apprehension of a breach of the peace. If those materials were present before the Magistrate, he would be deemed to have considered those materials and then passed the order; and it does not matter whether or not in the order itself he had mentioned that he was satisfied about an apprehension of a breach of the peace. In a number of cases cited before me there was mention in the order of the Magistrate that he was satisfied that there was an apprehension of a breach of the peace, and the question of sufficiency of his satisfaction was challenged before the higher Courts, and naturally those contentions were not accepted. On the other hand, if the record shows that there was no material before the Magistrate from which he could conclude that there was a likelihood of a breach of the peace, his order cannot be sustained.