JAGAN NATH Vs. HEM RAJ

JUDGEMENT

(1.) ORDER :- This is criminal reference made by the Sessions Judge Kathua vide his order dated 30-7-1997 whereunder a recommendation has been made to quash the order passed by A.D.M. Kathua on 19-10-1993 by virtue of which the proceedings in terms of Sec. 145, Cr. P.C. (hereinafter called the Code) are sought to be dropped and paddy crop which was standing on the land was released in favour of respondent No. 1.

(2.) I have gone through the order of reference and also the impugned order. I agree with the conclusions drawn by the learned Sessions Judge and hold that the order passed by the trial Magistrate is bad in law. I confirm the order of reference to the extent the matter is sought to be remitted back to the Court of A.D.M. Kathua for fresh inquiry. I, however, find the reasoning of the learned Sessions Judge not exhaustive and lucid. It at some points confused issues. I have the following reasoning to support the Session Judge's order :- (1) The question of imminent danger of breach of peace is a gate pass for a Magistrate to enter into the arena of judicial power exercisable under this section. Existence of such danger of breach of peace is a sine-qua-non for attracting a Magistrate's jurisdiction. Once that jurisdiction is exercised and preliminary order passed, what remains to be decided is as to which of the party was in possession on or around two months of the date of the order.

(3.) At the time of passing of the preliminary order the Magistrate must be satisfied in respect of three things; Firstly that a dispute exists; second that such dispute is likely to cause breach of peace; and third; that the dispute must concern any land or water or the boundaries thereof, within the local limits of his jurisdiction. Existence of such a dispute at the initial stage is qualified by the condition that such a dispute must necessarily lead to an imminent danger of breach of peace. Once the Magistrate is satisfied of the above mentioned three conditions, he shall pass a preliminary order. Passing of the preliminary order gives him jurisdiction to exercise his powers in terms of Sec. 145. It shall at the same time be noted that such satisfaction can be derived by the Magistrate either from a police report or from other information. Here in the present case the trial Magistrate in his order dated 19-10-1993 has recorded his satisfaction with regard to existence of a dispute which is capable of giving rise to imminent danger of breach of peace. He draws up the preliminary order and also passed an order of attachment. Thereafter the parties lead sufficient evidence by placing on record different documents and swear in umpteen affidavits with respect to their claim of possession. The trial Magistrate proceeds to pass an order in the name of a final order on 6-5-1994, the relevant portion of the same is reproduced as under :- "So I do not find the dispute of such a nature which is likely to cause any breach of peace. The case, therefore, is not maintainable. Accordingly I dismiss it and attachment order of paddy crop issued earlier be treated as withdrawn with immediate effect and the possession as well as paddy crop be restored in favour of respondent No. 1. The file be consigned to records after completing usual formalities required under rules." The purpose of reproducing the relevant portion of the order dated 6-5-1994 is to show that by virtue of this order he has only tried to satisfy himself again as to whether or not any dispute existed which was likely to cause breach of peace. He has landed himself into a grave conceptual error by coming to the same point wherefrom he had started his journey. The result being that the intervening exercise of the parties to prove their case has been rendered infructuous.