DUDECHAND Vs. MANAKMAL

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Bikaner, holding that the First Class Magistrate, Berunjat, who directed that Manakmal shall remain in possession of the Nohra until evicted in due course of law had no jurisdiction to initiate proceedings under section 145 of the Criminal Procedure Code and that there was little doubt that the dispute between the parties was of a civil nature. He has accordingly recommended that the order of the learned Magistrate may be quashed. 2. The property in dispute which has led to this application under section 145 of the Criminal Procedure Code consists of a Nohra adjoining the house belonging to Manakmal applicant. It was stated in the application: (a) That the Secretary, Oswal Young Men's Association and Dude-chand had got the wall to the south of the Nohra demolished on 25th of March 1949. (b) That they had also got the wall towards the east demolished. (c) That they were intending to close the old door of the Nohra and open a new one on the site of the eastern wall which had been demolished by them. 3. It was further stated in the application that Dudechand was contemplating the construction of a passage at night with the assistance of certain bad characters and that if he did so, the applicant will be forced to resist him in order to maintain his possession and that at that time he feared there will be a likelihood of a breach of the peace. THIS application was supported by an affidavit and also by a statement on oath before the learned Magistrate. The latter on the above material passed the order dated 28th of March 1949 as below:- *** 4. Thereafter, Dudechand and Mangilal filed their reply stating that the Nohra in dispute was temple property over which the applicant had no valid possession and further that the application was mala fide. The applicant made his own statement and produced a number of witnesses and ultimately the learned Magistrate passed the order in respect of which this reference has been made. 5. The learned Sessions Judge, who heard a revision from the order of the learned Magistrate, found that the preliminary order did not contain even a passing reference to the salient fact of the likelihood of a breach of the peace. The learned Magistrate simply observed that it was desirable that the notices should be issued to the non-applicants to show cause why Manak-mal's possession over the Nohra may be kept intact and issued an injunction against them restraining them from interfering with the Nohra in any way. The learned Sessions Judge was of the view that the Magistrate of the trial court did not comply with the mandatory provisions of this section. He also examined the evidence and came to the conclusion that the find order passed by the learned Magistrate was not justified. 6. Mr. Inder Nath, the learned counsel appearing on behalf of Manakmal, has referred to 1947 Lah. 227 (1) (Wazir Chand & others vs. Dr. . Rawel Chand Faquir Chand.) and a number of other authorities and contended that it was the Magistrate alone who was to be satisfied as to there being or not being a likelihood of a breach of the peace and that if he was satisfied one way or the other, the High Court on revision would not interfere with his decision. The proposition of law is correct so far as it goes, but the point is, (1) Whether an order contemplated by section 145 of the Criminal Procedure Code had at all been passed by the learned Magistrate of the trial court, and (2) Whether there was any material on the record which would justify the assumption of jurisdiction under the above section. 7. So far as the first question is concerned, I feel disposed to agree with the view taken by the learned Sessions Judge that the order passed by the learned Magistrate does not at all refer to the existence of the likelihood of a breach of the peace concerning the property in dispute. In fact, it appears he did not at all concentrate on this aspect of the case otherwise he would not have omitted to mention this important fact in the order. His observation at the end of the order that the non-applicants should not interfere with Manakmal's possession so that there may not be a breach of the peace, strengthens the above impression and only shows that he did not apprehend a breach of the peace on the date the order was passed. As held in 1932 Cal. 60 (1) (Behari Majhi v. Hari Majhi.) there must be a present fear and orders under section 145 are not to be passed when the applicant fears that a breach of the peace will occur a considerable time ahead. The only other question calling for a consideration is whether there is any material on the record which shows that on account of the dispute between the parties, there was an imminent danger of a breach of the peace. The entire evidence has been read out and has also been discussed by the learned Sessions Judge in the order of reference and all that has been stated by various witnesses is that some persons belonging to either party had assembled on the spot and were keeping a watch in order to prevent an interference with status quo. There is nothing to show that they were excited or in a fighting mood. It may be pointed out that while this tussle was going on between the parties, Sub-Inspector of Police, Sujangarh visited the spot but for reasons best known to the applicant, he was not produced. As stated by the learned Sessions Judge, if he had been examined, he would have thrown some light on the existence or otherwise of an apprehension of the breach of the peace. In fact if there had been such an apprehension, he would have himself taken necessary steps to prevent it. Thus there is no escape from the conclusion that there is no material on the record showing the existence of an apprehension of the breach of the peace and that the dispute between the parties is of a civil nature. Accordingly, the reference is hereby accepted and the order passed by the learned Magistrate set aside. .