Authored By : J.F. Stevens, Richard Harington

J.F. Stevens and Richard Harington, JJ.

1. On the 10th June 1901 the Sub-divisional Magistrate ofKurigram drew up a proceeding under the provisions of Section 145 of the Codeof Criminal Procedure, setting forth that between the present Petitioner,Maharaja Manindra Chandra Nandi of Bahirband and certain other persons,residents of Bhitarband, a dispute existed likely to cause a breach of thepeace concerning certain land and calling upon them to attend before him on the27th June and to put in written statements of their respective claims asregards the actual possession of the land in question. Maharaja ManindraChandra Nandi was made the first party in the proceedings and the other personswere made the second party.

2. Time was asked for by the first party to enable him toprepare his written statement and his application was granted. In the meantimean Amin was sent to measure the land which was supposed to be thesubject-matter of the dispute. On the 24th July the Magistrate recorded thefollowing order:--"Put up after disposal of the police case under Sections144 and 379 of the Indian Penal Code."

3. Finally, on the 5th August 1901, the Sub-divisionalMagistrate passed the following order:--"It transpired in the course ofthe trial of the case of Asir Mahmud v. Kandura Sardar and others underSections 144 and 379 of the Indian Penal Code that the tenants of Bhitarbandploughed the disputed chur and destroyed the crops standing thereon, on the 6thFalgoon last, i.e., the day that the Civil Court Amin delivered possession andBahirband tenants took no steps to recover possession. It also transpired inevidence that the tenants of Bahirband left the chur after the Amin deliveredpossession. Thus the entire chur is now in possession of the tenants ofBhitarband and it is unnecessary to institute any proceedings under Section 145of the Code of Criminal Procedure; so the case is struck off."

4. We may mention that at the time when this final order waspassed no written statement had been filed by either party.

5. The first party then proceeded to present to this Courtthe petition on which the Rule now before us was issued. Objection was made tothe final order of the Sub-divisional Magistrate mainly on three grounds:first, that he had no jurisdiction to strike off the proceedings after havingonce instituted them and that it was incumbent upon him to peruse thestatements, if any, put in by the parties, to hear the parties, to receive theevidence produced by them, to consider the effect of such evidence and then todecide whether any and which of the parties was at the date of the institutionof the proceedings in possession of the subject-matter of dispute; secondly,that the Sub-divisional Magistrate acted illegally in importing into theproceedings under Section 145 and in relying upon evidence taken in anothercase, to which neither of the present parties was a party; and thirdly, thatthe Sub-divisional Magistrate took an erroneous view as to what constitutedpossession under Section 145 of the Code of Criminal Procedure. The Petitionerprayed that this Court would set aside the order of the Sub-divisionalMagistrate, dated the 5th August 1901 and direct him to proceed according tolaw.

6. This Court has in effect been asked to set aside theorder whereby the Sub-divisional Magistrate struck off the proceedings whichthere pending before him and to direct him to re-open the proceedings and toproceed to the inquiry as to possession provided for in Sub-section (4) ofSection 145.

7. Now, it appears to us that the application of thePetitioner is based upon an erroneous conception of the nature of a proceedingunder Section 145 and of the position of the parties to such a proceeding. Theprocedure provided by Section 145 is intended solely for the purpose ofpreventing a breach of the peace where a dispute exists concerning any land, orwater, or the boundaries thereof, which dispute, if no proceedings were taken,would be likely to cause a breach of the peace. The institution of suchproceedings is a matter entirely within the discretion of the Magistrate. Theexistence of a dispute likely to cause a breach of the peace is a conditionprecedent absolutely necessary to give the Magistrate jurisdiction to enterupon an inquiry as to possession. There is a current of rulings of this Courtby which it has been held that it is a necessary preliminary condition toproceedings under Section 145, that a Magistrate, acting under the provisionsof that section, shall record an order stating the grounds of his beingsatisfied that a dispute likely to cause a breach of the peace in fact exists.Any inquiry as to possession that is made under the provisions of that sectionis made, not for the purpose of strengthening the position of the one party orof the other party in the dispute between them, but because such an inquiry isnecessary for the making of an order under Sub-section (6) declaring the partyin possession to be entitled to retain possession, until evicted from theproperty in due course of law and forbidding all disturbance of suchpossession, until such eviction. Accordingly, Sub-section (5) provides thatnothing in the section shall preclude any party so required to attend, or anyother person interested, from showing that no such dispute exists or hasexisted and in such case the Magistrate shall cancel the said order and allfurther proceedings thereon shall be stayed, but, subject to such cancellation,the order of the Magistrate under Sub-section (1) shall be final.

8. It has been contended by the learned Advocate-General forthe Petitioners that it is not open to the Magistrate to cancel an order madeunder Sub-section (1) and to stay proceedings, unless one of the parties, orsome other person interested, has shown that the supposed dispute does notexist or has not existed. But we are unable to understand why there should beany such limitation of the power of the Magistrate to stay his hand, if he hasbecome satisfied, whatever the source of his information may have been, thatthe state of things does not exist which alone would give him jurisdiction toproceed with the inquiry. When once he has such information before him, thewhole object of the proceeding ceases and any inquiry that he might make wouldbecome a mere inquiry in a civil dispute--an inquiry of a kind which is notordinarily within the jurisdiction of a Magistrate.

9. We may refer to the case of Tarini Charan Chowdhry v.Amulya Ratan Roy I.L.R. (1893) Cal. 867 as recognising that a Magistrate maystay his hands when it appears to him that there is a cessation, even for thetime being, of any likelihood of a breach of the peace. In that case, afterwritten statements had been filed in the ordinary course, the parties presentedpetitions, asking for an opportunity, either to have their boundariesdemarcated or to settle their dispute by arbitration. The Magistrate passed anorder striking off the case under Section 145. We may quote the followingpassage at page 868 of the judgment of this Court in that case: "Now thefirst question which arises is the effect of an order striking off proceedingsunder Section 145 of the Code of Criminal Procedure. As Mr. Woodroffe has toldus, there is a series of decisions with regard to the effect of striking offthe file of a Court applications in civil matters; but we think that thosestand on an entirely different footing from proceedings of a quasi-criminaldescription. The section itself provides for a case, where a Magistrate cancancel his order. Those are cases where parties show him that no dispute existsand if the likelihood of a breach of the peace has ceased to exist before theproceedings under Section 145 have terminated, it follows that there can be nonecessity for a continuation of such proceedings. The result of thoseapplications which were sanctioned by the Magistrate practically amounted tocessation, at any rate, for the time being of any likelihood of a breach of thepeace. That must have been the view which the Magistrate took of it, as heconsidered it unnecessary to proceed, at any rate then, with those proceedings.We think that, unless it can be shown that there is a legislative enactment,giving a power to that effect, cessation by the order of the Magistrate of any criminalproceedings must, until that order is set aside, operate not only as stayingthe proceedings, but destroying them."

10. The learned Advocate-General has cited the case of TheEmpress v. Ganpat Kalwar (1900) 4 C.W.N. 779 as an authority for the propositionthat the Magistrate is bound to hear the evidence adduced by the parties in acase under Section 147 of the Code, as in a matter under Section 145. What theMagistrate had done in that case was to make an order under Section 147,adverse to one of the parties, on a mere inspection of the locality withouttaking evidence and this Court held that it was not in his power to dispose ofthe case in that manner on such materials. The case does not go further thanthat.

11. We think it clear that a party to a proceeding underSection 145 is not in the position of a Plaintiff in a civil suit who has setthe Court in motion and has a right to require a decision upon the questionsraised by him. If a Magistrate either refuses to make an order under Sub-section(1) of Section 145, or, having made such an order, subsequently cancels it onthe ground that a dispute does not exist likely to cause a breach of the peace,no private person has any status in our opinion to contest the propriety of hisrefusal to make an inquiry into the question of possession.

12. Another question of very great importance raised by thepresent rule is, whether this Court has jurisdiction to interfere with such anorder as that which has been made by the Sub-divisional Magistrate in thiscase. The law regulating the powers of this Court to interfere on revision withorders of the present kind has been altered by Sub-section (3) of Section 435of the Code of Criminal Procedure. It was held by this Court in the case ofHurbullubh Narain Singh v. Luchmeswar Prosad Singh I.L.R. (1898) Cal. 188 thatthe effect of this alteration in the law was to place matters under Chapter XIIof the Code of Criminal Procedure, that is, under Section 145, amongst othersections, in the same category as orders under Section 143 and Section 144. Itwas pointed out that in regard to an order under Section 143 or Section 144, ithad been held in many cases, so as to have become settled law, that though thepowers of a Court of Revision under the Code could not be exercised, still ifan order was challenged to be without jurisdiction, that is to say, if it beoutside the section, the mere fact of the order purporting to be so passedwould not bring it within the section, so as to debar the exercise of the powersunder Section 15 of the Charter Act to set it aside as null and void andwithout jurisdiction.

13. We think that the present case does not come within therule of the reported case to which we have just referred. It is, no doubt, thecase that this Court has, from time to time, ever since the enactment of thepresent Code of Criminal Procedure, Act V of 1898, interfered to set aside badorders made under Section 145 affecting a party to the proceeding; but it seemsto us that there is a very obvious distinction between such an order and anorder of the nature now before us, in which the Magistrate does not make anyorder affecting either of the parties, but refuses to make such an order atall. Had the order now before us purported to declare the possession of the oneparty or of the other and to forbid disturbance of such possession under theprovisions of Sub-section (6) of Section 145, it might well have been that ourinterference might have been called for.

14. It has been contended by the learned Advocate-Generalthat inasmuch as the Sub-divisional Magistrate states that according to-theinformation before him possession lies with the Bhitarband tenants, the orderpractically amounts to one under Sub-section (6). But we are unable to accedeto this proposition. It appears to us that the order has not and cannot haveany such legal effect. The legal position in our view is precisely what itwould have been, if no proceedings under Section 145 had been instituted atall. What the Sub-divisional Magistrate in effect says is that he had at thetime of making that order information before him which was not available to himwhen he made the order under Sub-section (1) of Section 145; and that had theinformation been available to him at that time, he would not have drawn up anorder stating that he was satisfied that a dispute likely to cause a breach ofthe peace existed and he has accordingly cancelled the original order. Theorder striking off the proceedings does not amount to an adjudication of thequestion of possession for the purposes of Sub-section (6) of Section 145.

15. It has not been shown to us that either before or sincethe passing of the Act of 1898 this Court has ever directed the institution ofproceedings under Section 145, or the revival of such proceedings, when theyhave been stayed by the Magistrate. On the contrary, in the case of Ekram Singh(1899) 3 C.W.N. 297, where it was contended that proceedings had been wronglyhad under Section 107 of the Code of Criminal Procedure and that proceedingsought to have been instituted under Section 145, it was distinctly held by thisCourt that it was incompetent to direct proceedings to be taken under Section145.

16. The learned Advocate-General has referred us to the caseof Dolegobind Chowdhry v. Dhanu Khan I.L.R. (1897) Cal. 559, in which it washeld that where a dispute existed likely to cause a breach of the peaceconcerning land, proceedings ought to be instituted under Section 145 and notunder Section 107. But in that case all that this Court did was to set asidethe order which had been made under Section 107 on the ground that it wasbinding on one party and left the ether party free without any adjudication asto possession; but no order was made by this Court directing the institution ofproceedings under Section 145.

17. Only one case has been cited to us in which this Courthas directed the Magistrate to take any action by way of completing proceedingsunder Section 145, that is the case of Kefatullah v. Feruzuddin Miah (1900) 5C.W.N. 71. In that case, however, the proceedings had not been stayed by theMagistrate. An order had been passed summarily without evidence adversely toone of the parties, who had failed to file a written statement. This Court setaside that order and directed that the case must be tried in accordance withlaw.

18. We may mention another case which has been cited for thePetitioner as showing that this Court has interfered in proceeding of thisnature. That is the case of The Katras-Jherriwah Coal Company v. Sibkrishta Dawand Company I.L.R. (1894) Cal. 297. There it was held that an order which hadbeen made under Section 145 had been improperly made and this Court substitutedan order of attachment under Section 146. That case was thus one of a whollydifferent character from the case before us and moreover, it was decided beforethe present Code of Criminal Procedure, Act V of 1898, came into force.

19. In the views which we have expressed with reference tothe powers of the Magistrate, the status of the parties and the jurisdiction ofthis Court, it is unnecessary for us to notice more particularly the second andthird of the objections which we have stated above, namely, that effect wasgiven in the present case to evidence which had been taken in another case andthat the view of the Sub-divisional Magistrate as to what constitutedpossession was erroneous.

20. For the reasons which we have stated we must decline tointerfere and we accordingly discharge the Rule.

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Manindra Chandra Nandivs. Barada Kanta Chowdhry(28.02.1902 - CALHC)