PALANI GOUNDAN Vs. KULANDAIVELU GOUNDAN

JUDGEMENT

(1.) At the instance of the petitioner the Joint Magistrate of Dindigal passed a preliminary order under Section 145, Criminal Procedure Code on the 10 January 1922. This was preceded by an order of attachment under Sub-section 4 dated the 5 January. The parties were directed to tile written statements which were filed on the 1 February 1922 and the Magistrate on the same date made an order refusing to proceed with the enquiry under Section 145 on the ground that some proceedings haft already been taken under Section 144. The Magistrate says: "It is true that the order passed under Section 141 Criminal Procedure Code, by the Sub-Magistrate has now ceased to be in force and that the Sub-Magistrate had no jurisdiction under that section to give a decision as to who on a given date was in possession of the land. But on further consideration of the circumstances, which were not all before me when I passed my first order ex parte, I do not think that it is necessary now to take action as prayed for. I therefore dismiss the petition asking for action under Section 145, Criminal Procedure Code. The finding of the Sub-Magistrate was upheld on appeal by this Court and I see no reason to take it up again." He again observes "the claims of the parties should be settled by a Civil Court and I do not consider that it is necessary to enter into the question of possession here". What apparently happened was this. On the 25 July 1921 the Sub-Magistrate of Palni made an order which purported to be an order under Section 144 which is said to be favourable to the counter-petitioners. That order was upheld on appeal by the Sub-Divisional Magistrate on the 10 September 1921. The Joint Magistrate thinks that in view of these orders it would be unnecessary to take any further proceedings.

(2.) It has been contended on behalf of the petitioner that the Magistrate had no jurisdiction to make the order in question. Having initiated the proceedings it was open to the Magistrate to make an order under Sub-section 5; that is to say, if he was satisfied that no dispute of the nature mentioned in the section existed he could cancel the preliminary order made on the 10 January 1922. It was also open to the Magistrate to find who was in possession of the subject matter and issue an order under Sub-section 6 of Section 145. A third course was still open to him namely, to attach the property under Section 146. It is obvious that the Magistrate has pursued none of these three courses, and the order that he passed is not justified by the directions contained either in Section 145 or in Section 146.

(3.) Mr. Richmond, who supports the order, has argued that it contains, in effect, a finding that there was no apprehension of a breach of the peace. I have carefully read the order and I am unable to accept this contention. The Magistrate merely states that as proceedings were previously taken under Section 144 and incidentally in the course of those proceedings it was found that the counter-petitioner were in possession of the property, it is not desirable to proceed with the enquiry under Section 145. The order of the Magistrate clearly contravenes the provisions of the Criminal Procedure Code.