GAINDA Vs. PURSHOTTAM

JUDGEMENT

(1.) THIS is a reference by the learn-ned District Magistrate, Sawai Madhopur in a case under sec. 145 Cr. P. C. He has recommended that the order of the Sub-Divisional Magistrate, Sawai Madhopur attaching the property in dispute be set aside. I have heard the learned counsel of both the parties. It is clear in the present case that no preliminary order as required by sec. 145 (1) was made. It has, however, been argued that the absence of the preliminary order alone is not fatal to the proceedings under sec. 145 unless any prejudice is shown Learned counsel for the applicant who moved the learned Magistrate under sec. 145 Cr. P. C. has brought to my notice a ruling of a Division Bench of this Court in the case of Durjan Singh vs. The Stated ). It was held in that case that a mere omission on the part of a Magistrate to pass a preliminary order under sec. 145 (1) Criminal Procedure Code or his failure to record the grounds for his being satisfied as to the existence of a dispute within the meaning of that section, and as to the likelihood of a breach of the peace are irregularities of procedure and must be judge by the test of prejudice under sec. 537 Cr. P. C. It was further observed that a Magistrate's jurisdiction or lack of it under sec. 145 Cr. P. C. arises not from he presence or absence of a formal order under sec. 145 (1) or again from a statement of his grounds as to his satisfaction of a likelihood of a breach of peace, or his failure to record such grounds, but the Magistrate really acquires jurisdiction from certain basic conditions laid down in sec. 145 viz. , (1) that there exists a dispute concerning any land or water or boundaries thereof within the local limits of his jurisdiction and (2) that he is satisfied from some information, whether it be a police report or any other information, and the Code does not limit the kind of information upon which a Magistrate may act,that such dispute is likely to cause a breach of the peace. As soon as these conduction are fulfilled, the Magistrate is at once 'seized of the dispute, and acquires jurisdiction to act under sec. 145, Further on it was observed that "it is, however, highly desirable that the magistracy should avoid slipshod or perfunctory procedure in dealing with cases under sec. 145 Cr. P. C. and should carefully comply with its provisions, and invariably record a preliminary order strictly complying with the directions contained therein, so that the object underlying this section properly fulfilled and not defeated. " THIS ruling is binding on me sitting as a Single Judge and if the facts of the present case were similar to the facts in the case of Durjansingh vs. The State, I would yet have been justified to quash the order of the lower court. I, however, find that the facts of this case are quite different from the facts of Durjansingh's case. In that case the proceedings in the Magistrate's court were challenged after he had made the order under sec. 145 (1)of the Criminal Procedure Code. At such a state the final order could not be quashed simply on the ground that the Magistrate had failed to make a preliminary order as required by sec. 105 (1) and sec. 537 of the Criminal Procedure Code cured the defect unless any prejudice were shown. In the present case on final order has yet been made and the applicant in this revision questioned the order of attachment as soon as it was made. The main proceedings under sec. 145 are still pending and no final order has yet been made. On a question of procedure, the law does not encourage that parly should come at a late stage and challenge the order of the lower courts at such a late stage. However when during the very proceedings a party comes to the higher court challenging the illegality in the procedure of the lower courts, the higher courts are perfectly justified in correcting the lower courts and make them observe the procedure prescribed by law. Another distinction which exists between the facts of this case and the facts of Durjansingh's case is that in that case a notice under sec. 145 Cr. P. C, was issued and in that notice reference to the report of the police was made and it was stated that there was an apprehension of the breach of peace and the parties were called upon to file their written statements as regards their respective claims to possession of the land in dispute. Although, therefore no specific order under sec. 145 (1) was made, it appears from the notice that all the things which were necessary for proceeding in a case under sec. 145 were before the mind of the Magistrate. In the present case no notices as required under sec. 145 were issued to the parties and although the proceedings have been delayed in the court of the learned Magistrate for about a year and more than dozen dates were fixed- yet there is nothing to show that the learned Magistrate ever applied his mind to the fact whether. there was any material for being satisfied that there exists an apprehension of the breach of the peace between the parties. The record shows that the application under sec. 145 was made on the 25th of June, 1951 and the applicant Purshottam was examined on oath but that statement of Purshottam did not satisfy the learned Magistrate that there was any danger of breach of the peace and he made an order that the applicant should produce evidence to show that there was no danger of breach of the peace. No such evidence was ever recorded by the learned Magistrate right upto the 8th of February, 1952 when he made the order of attachment. It cannot, therefore, be said that there was any meterial before the learned Magistrate from which he was satisfied that there was no danger of breach of the peace between the parties. Learned counsel for Purshottam argued that another case under sec. 107 with respect to the same land was pending between the parties at the same time and the learned Magistrate from the material on the record of that case must have been satisfied that there was danger of a breach of the peace between the parties. I do not find any mention on the record of this case that the learned Magistrate was satisfied by the material on the record of the case under sec. 107 that danger of a breach of the peace existed between the parties. I do not therefore, think that the Magistrate in the circumstance of this case was justified in proceeding under sec. 146 of the Criminal Procedure Code, Therefore he had no power to make an order of attachment under proviso (ii) of sub-sec. (4) of sec 145.

(2.) THE order of attachment too does not show that the Magistrate considered the case one of emergency. He himself simply said that nothing would be lost if the properly is attached and the receiver is appointed and it maybe that if the receiver is not appointed some breach of peace might ensue. I do not think that the learned Magistrate was justified in making an order of attachment under the circumstances of the case.