Authored By : Macpherson, Hamilton Wincup Gordon

Macpherson and Hamilton Wincup Gordon, JJ.

1. This is a case under Section 145 of the CriminalProcedure Coda. The Districts Magistrate made the initial order stating that hewas satisfied of the existence of a dispute likely to cause a breach of thepeace, and directed the parties concerned in it to attend the Court of aSubordinate Magistrate and to put in written statements of their respectiveclaims to the land which was the subject of dispute.

2. The Magistrate to whom the case was made over was aMagistrate of the first class empowered to make an order under Sections 145,146and 147, and he, after a prolonged enquiry in which a great deal of evidencewas taken, being unable to satisfy himself as to which of the parties was inpossession, made an order under Section 146 attaching the property until acompetent Civil Court had determined the rights of the parties thereto.

3. On a rule obtained by the first party, Rajah SatishChandra Panday, Mr. Hill contends, first, that the Magistrate who held theenquiry directed in Section 145 and made the order under Section 146 had nojurisdiction, as he was not the Magistrate who made the initial order and whowas satisfied of the existence of a dispute such as would justify proceedingsunder Section 145. In other words, that the jurisdiction to make an order underSections 145 and 146 is personal to the Magistrate who initiates theproceedings : second, that the initial proceeding under Section 145 is defective,inasmuch as it does not set out any reasonable or sufficient ground for thebelief that a breach of the peace was imminent if proceedings under the sectionwere not taken; third, that the dhab, concerning which the Magistrate has madean order maintaining the possession of the second party, was not included inthe land in dispute, and concerning which the parties were directed to put inwritten statements.

4. The first contention is, we think, erroneous. Section 530declares that if a Magistrate, not duly empowered by law, makes an order underchapter -XII his proceedings shall be void; but this we think clearly refers toa Magistrate who is not a District Magistrate, Sub-Divisional Magistrate orMagistrate of the first class. The Code contains provisions for the transfer bya District or Sub-Divisional Magistrate of any case of which he had takencognizance for enquiry or trial to any Subordinate Magistrate duly empowered todeal with it (section 1 92); for the withdrawal by a District or Sub-DivisionalMagistrate of any case which he had made over to any Magistrate for enquiry ortrial, and the making over of such case to any other competent Magistrate forenquiry or trial (section 528); for the inquiry into, or trial of, any case inwhich the Magistrate who has heard the whole or part of the evidence ceases toexercise jurisdiction and is succeeded by another Magistrate (section 350). Thegeneral power conferred upon a District or Sub-Divisional Magistrate totransfer or withdraw any case for enquiry or trial is not, we think, taken awayor cut down by anything in Section 145. A proceeding under chapter XII is anenquiry within the meaning of Section 4 of the Code, nor can we see any reasonfor putting upon Section 145 the narrow construction contended for. If thatconstruction is right, it would follow that if the Magistrate who made theinitial order died, or was transferred, or was incapacitated from any cause forgoing on with the enquiry, the proceeding must drop. This would frustrate thewhole object of the section, which is to prevent a breach of the peace bydetermining, if possible, the fact of actual possession at the time when theorder for enquiry was made. The power of transfer conferred upon Magistratesand Sub-Divisional Magistrates is a general power, and unless cases underchapter XII are expressly excluded, it must extend to them also. It is arguedthat Section 192 applies only to criminal cases, as it occurs in a chapterwhich deals with offences, and the preceding section relates to the cognizanceof offences The words are, however, quite wide enough to include cases underchapter XII. We may observe also that in the Code of 1872, Section 44, which isthe section corresponding to Section 192, provided only for the transfer of "criminalcases." By the amending Act XI of 1874 the word "criminal" wasstruck out, and it has been omitted from all the subsequent enactments.

5. As regards the second point we think it unnecessary torefer to all the cases" which have been cited, as we think that theMagistrate in his preliminary order under Section 145 set out ample grounds tojustify proceedings under that section. Neither party showed, or even alleged,that the Magistrate had been misled in the information on which he acted, andthat there was no danger of a breach of the peace arising from the dispute. Thethird contention has no solid foundation, and the objection is not the onewhich coming from the petitioner we can listen to. The proceeding itself leavesit doubtful whether the dhab was included in the disputed land, but the mapwhich the Magistrate attached to it showed that it was included. In the courseof the enquiry the second party objected to the inclusion of the dhab, but thefirst party insisted that it was part of the land in dispute and covered by theproceeding, and it was so treated in the enquiry. Now that possession has beenproved to be with the second party, the first party brings forward thisobjection, which under the circumstances we cannot but call impudent.

6. It has also been urged that the Magistrate ought to havefound on the evidence that the first party was in possession. This is a matterwhich we decline to go into. The Magistrate has criticised the whole evidenceon both sides, and says he cannot satisfy himself as to which party is inpossession. Under these circumstances he has made the order which the lawempowers him to make. The rule is discharged.

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Satish Chandra Pandayvs. Rajendra Narain Bagchi (21.06.1895- CALHC)