Authored By : Henry Thoby Princep, T. Ameer Ali

Henry Thoby Princep, J.

1. After trying a case of murder, the Sessions Judge ofBacker-gunge passed the following order:

The District Magistrate should at once direct proceedings tobe taken under Chapter XII, Code of Criminal Procedure, in respect of Immovableproperty, possession of which is disputed between the Bhuttacharjees andSummadars of Baghda on the one hand and the Dasses of Goila on the other, toput an end to further breach of the peace between the parties.

2. What order was thereupon passed by the DistrictMagistrate we have been unable to ascertain from the record or from the learnedCounsel or pleaders who have represented the four parties to the proceedingstaken. It, however, appears that a Police enquiry was ordered, and thatthereupon the police represented that four sets of persons representing varioustitles and claims to possession, were in dispute regarding certain lands. Thepossession of these lands was, we may take it, in some degree the origin of thedispute out of which the trial held by the Sessions Judge arose. There is not aword, however, in that report regarding any breach of the peace being likely toensue in consequence of any disputes between the four parties mentioned. TheDeputy Magistrate, Babu P. K. Dutt, thereupon recorded a proceeding purportingto be under Section 145 of the Code of Criminal Procedure, stating that,according to the report, dated 6th July, submitted by Raj Manick Dutt,Sub-Inspector, station Gournuddy, he was satisfied that there was likelihood ofa breach of the peace being committed by the parties referred to above,regarding the possession of certain lands described, and these parties, we mayhere mention, are the four parties set out in the Police report. After somepostponements the matter proceeded to trial on written statements put in by thefirst, third and fourth parties and on evidence tendered. On the 4th ofNovember the Deputy Magistrate considered it unnecessary "to hear anyevidence which the petitioners (the third and fourth parties) are willing toadduce as it is quite unnecessary to determine their possession." Headded: "This proceeding will not prejudice their interests in future. Thedispute being virtually between the second and the first party, I shall onlysee which of the two parties is in possession of the disputed land." Onthe evidence so taken the Magistrate found the first party to be in possession.

3. The matter has been referred to us in revision by theSessions Judge on the ground that the third and fourth parties should have beenallowed to adduce evidence of their respective claims to possession. Thisreference has been contested at considerable length by Mr. Apcar, who appearedin support of the order of the Magistrate; the other parties were representedby pleaders of this Court.

4. It has been contended by Mr. Apcar that inasmuch as theevidence shows that there was probability of a breach of the peace between thefirst and the second parties alone in respect of the lands, the order of theMagistrate is correct, and he also relies upon the order of the Sessions Judge.Next, that the third and fourth parties, not being concerned in any disputelikely to be attended by such consequences, could not properly be made partiesto a proceeding under Section 145, and would not be affected by any order suchas that now under consideration as between those parties only. Lastly, that theproceedings were not contrary to law, and, if irregular, should be maintainedbecause it does not appear that any such irregularity has occasioned a failureof justice in the terms of Section 537 of the Code of Criminal Procedure. Inthe course of the argument it was pointed out to the learned Counsel thatalthough in the order of the Magistrate purporting to take action under Section145, he relied on the Police report of the 6th of July, as satisfying him thata breach of the peace was likely between the parties in consequence of adispute regarding possession of certain lands, that report is altogether silenton this matter; and we desired to hear him on the whole case, not merely on thegrounds raised by the Sessions Judge in his reference, and whether inconsequence of this the proceedings were not bad. Mr. Apcar has relied mainlyon the case of Gour Mohun Majee v. Doollubh Majee 22 W.R. Cri. 81, under whichauthority he contends that the proceedings should not be set aside.

5. Sitting with Ghose, J., I had recently to consider allthe judgments of this Court, including this case, under the Codes of 1861 and1872 and the present Code, and we held in Dhanput Singh v. Chatterput Singh(ante, p. 153) that the substance of these cases is that a Magistrate is boundto satisfy himself, on grounds which are reasonable, that a breach of the peaceis imminent in regard to a property of the description specified in Section145, that a dispute likely to cause a breach of the peace exists concerningthem, and that the grounds stated by him must be such as would satisfy a Courtof revision, before which such a case may be brought by any of the partiesconcerned. In dealing with the case of Dhanput Singh v. Chatterput Singh (ante,p. 153) we had occasion to consider the case cited by Mr. Apcar. I doubted thecorrectness of the judgment of the learned Judges, and if that case had stoodalone I should have felt obliged to refer the matter to a Full Bench, but I wasrelieved from this because I found that that case was not in accordance withother cases on the subject.

6. It is not sufficient that in the course of a trial itshould appear from the statement of witnesses examined that a breach of thepeace is likely to ensue in consequence of a dispute regarding certain lands.Before taking action, the Magistrate is bound to be satisfied from a Policereport or other information on this point, and he is also bound to make anorder in writing, stating the grounds of his being so satisfied, and this mustbe served on the parties to the dispute. Mr. Apcar contends that we shouldassume that the proceedings were instituted on information other than thePolice report, that is, the order of the Sessions Judge referred to. Butalthough this may have been the real origin of these proceedings, as it led tothe Police report of the 6th July under some order of the District Magistratenot before us, it was not made the ground on which the Deputy Magistrateinstituted proceedings under Section 145. It was not stated as the ground onwhich that Magistrate satisfied himself that a breach of the peace was likelyto ensue between the parties. We may add that the fact that the Magistrate madethose who are known as the third and fourth parties, parties to thatproceeding, and they were not concerned in the Sessions trial, sufficientlyshows this. The intention of the law seems to he not only that Magistratesshould have sufficient grounds for proceeding under Section 145, hut that theyshould inform the parties concerned of the grounds on which they areproceeding. We may also observe that the Sessions Judge was not competent toorder the Magistrate to take action under Section 145. He should rather havedrawn the Magistrates attention to the nature of the dispute in the trialbefore him, so that the Magistrate might exercise his own discretion whetherproceedings under Section 145 were not necessary to settle matters, until theyshould have been regularly determined by a competent Civil Court. The recordbefore us certainly does not show that the proceedings in June under Section145 were based on the order of the Sessions Judge in a trial regarding a murdercommitted in Cheyt, that is, the previous March. Moreover, it by no meansfollows that a dispute of so serious a character in March was unabated in July,when the proceedings under Section 145 were initiated. In my opinion,proceedings under Section 145, initiated as the present proceedings have been,fall within the terms of Section 530 *, which declares that if a Magistrate,not being empowered by law in this behalf, makes an order under Chapter XII,Code of Criminal Procedure, that is, under Section 145, his proceedings shallbe void. It seems somewhat anomalous that, as contended before us, although thethird and fourth parties should be shut out in this case, because they are notinvolved in a dispute likely to lead to a breach of the peace concerningcertain lands, of which they claim to be in possession, they should be madeparties right up to the ultimate decision of the matter when the possession ofanother person should be declared, and that they should be told that this orderhas been passed without any prejudice to them, that is to say, that theMagistrate should declare that the first party is entitled to be retained inpossession, and yet that any possession alleged by the third and fourth partiesshould not be disturbed. Having made these persons parties to the proceeding,if the Magistrate was satisfied that a breach of the peace was imminentconcerning a dispute to possession of certain lands in which these parties wereconcerned, though they were not in the actual dispute, it seems to me that itwould be impossible to exclude them from the ultimate decision of the casewithout very serious prejudice and interference with any possession which theymight be able to establish. On this ground also--and this is the ground onwhich the Sessions Judge has referred this matter to us in revision--I shouldfind myself unable to maintain the order of the Magistrate, and if otherobjections, already stated, had not proved fatal, I should have requiredevidence to he taken from these persons and proper orders to be passed thereon.

T. Ameer Ali, J.

7. I agree in discharging the order of the Deputy Magistrateon both the grounds.

* Irregularities which vitiate proceedings.

[Section 530: If any magistrate, not being empowered by lawin this behalf, does any of the following things (namely):

(a) attaches and sells property under Section 88;

(b) issues a search-warrant for a letter in the Post-office,or a telegram in the Telegraph Department;

(c) demands security to keep the peace;

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of goodbehaviour;

(f) Cancels a bond to keep the peace;

(g) makes an order under Section 133 as to a local nuisance;

(h) prohibits under Section 143 the repetition orcontinuance of a public nuisance;

(i) issues an order under Section 144;

(j) makes an order under chapter xii;

(k) takes cognizance under Section 191, Clause (c), of anoffence;

(1) passes a sentence under Section 349, on proceedingsrecorded by another magistrate;

(m) calls under Section 435, for proceedings;

(n) makes an order for maintenance;

(o) revises under Section 515, an order passed under Section514;

(p) tries an offender;

(q) tries an offender summarily; or

(r) decides an appeal;

his proceedings shall be void.]

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The Queen-Empress vs.Gobind Chandra Das and Ors. (03.02.1893- CALHC)