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1951 DIGILAW 11 (KER)

Chidambara Pillai v. State

1951-02-02

GANGADHARA MENON

body1951
Judgment :- The counter-petitioners 1 to 6 in M.C. 25 of 1124 on the file of the First Class Magistrate, Padmanabhapuram are the revision petitioners. The petitioner in the lower court who is the lessee of the receiver appointed by the District Court complained to the court that counter-petitioners criminally intimidated him and were attempting to take forcible possession of a portion of the properties comprised in S. No. 2951/B and included in his lease. The District Court intimated the matter to the Police for necessary action. The Police after enquiry filed a report before the District Magistrate that action should be taken against the counter-petitioners under S.103 of the Criminal Procedure Code. On the basis of the Police Report the District Magistrate, Trivandrum passed a preliminary order on 20.4.1124. Immediately after on 25.4.1124 the 1st counter-petitioner filed a petition before the District Magistrate stating that the receiver appointed by the District Court and the petitioner in M.C. 25 of 1124 are attempting to trespass upon the property which is actually in his possession and enjoyment that the Police report that he is attempting to trespass upon the property in the possession of the lessee of the receiver and that he criminally intimidated him is false and that as there was dispute concerning the possession of immovable property the appropriate action to be taken is only under S.143 of the Criminal Procedure Code. After hearing both sides the District Magistrate passed the following order: "It is prayed that the proceedings of this court dated 20.4.1124 in M.C. No. 11 of 1124 under S.103 Crl. P.C. may be converted into proceedings under S.143 Crl. P.C. as the dispute is with regard to the possession of immovable property. From the report of the police it is seen that the counter-petitioners intimidated the petitioner with deadly weapons and committed such wrongful acts that were likely to occasion a breach of the peace. As per S.113 of the Criminal Procedure Code the Magistrate has to proceed to enquire into the truth of the information and to take further evidence. When it is found that one of the rival parties is in actual possession of the land and that there is a likelihood of a breach of the peace action may be taken under S.107 Crl. P.C. In this case the matter has to be decided after taking evidence. When it is found that one of the rival parties is in actual possession of the land and that there is a likelihood of a breach of the peace action may be taken under S.107 Crl. P.C. In this case the matter has to be decided after taking evidence. The case is transferred to the Division First Class Magistrate, Padmanabhapuram who is competent to proceed with the enquiry." 2. The case was accordingly sent to the Division First Class Magistrate, Padmanabhapuram. After the evidence for the prosecution was closed the 1st revision petitioner (counter-petitioner No.1 in the court below) moved the Magistrate through petition dated 7.6.1950 to hear and decide the question whether in the circumstances of the case the appropriate action is not under S.143 Crl. P.C. The learned Magistrate rejected the application. This revision is directed against that order. 3. The learned First Class Magistrate thinks that the order of the District Magistrate quoted above which the 1st counter-petitioner did not seek to vacate, precludes him from considering the question whether it would be proper in the circumstances of the case to take action under S.143 of the Criminal Procedure Code. I do not think that the order of the District Magistrate warrants such an inference. All that the District Magistrate stated was that it is a question to be decided after taking evidence. This does not mean that the learned District Magistrate intended that the case under S.103 of the Criminal Procedure Code should be proceeded with right up to the very end until a final order is passed under S.114 or 115 of the Criminal Procedure Code. If it were so the District Magistrate would have undoubtedly dismissed the application of the first counter-petitioner. This he did not do. He thought a decision could be taken in the matter only after taking some evidence. This does not to my mind mean that the First Class Magistrate is precluded from considering the matter at a later stage. It is exactly that, that the 1st revision petitioner seeks in his application dated 7.6.1950. This he did not do. He thought a decision could be taken in the matter only after taking some evidence. This does not to my mind mean that the First Class Magistrate is precluded from considering the matter at a later stage. It is exactly that, that the 1st revision petitioner seeks in his application dated 7.6.1950. When a dispute likely to cause a breach of the peace exists concerning possession of land, proceedings under S.143 of the Criminal Procedure Code should in normal circumstances be instituted and the dispute relating to possession should be decided once and for all so far as the criminal courts are concerned unless there are special reasons for proceeding under S.103 of the Criminal Procedure Code. No doubt the mere fact that the dispute relates to possession of immovable property does not preclude the Magistrate from taking proceedings under S.103 of the Criminal Procedure Code. He has a discretion to proceed either under S.103 or under S.143 of the Code. But it has to be borne in mind that where the Magistrate proceeds under S.103 of the Criminal Procedure Code and that against only one of the parties to the dispute it gives an unfair advantage to the other party. It seems to me that it is on account of this that the 1st revision petitioner moved the District Magistrate at the earliest stage of the case by his petition dated 25.4.1124 to consider the question whether the appropriate action in the circumstances of the case is not one under S.143 of the Criminal Procedure Code. The District Magistrate then thought that in the light of the Police report evidence is necessary before the question could be decided one way or the other. Now that the prosecution has closed its evidence there is nothing that prevents the Magistrate in examining the question in the light of the evidence before him, for if in the course of the enquiry under S.103 of the Criminal Procedure Code, the court is satisfied that proceedings under S.143 of the Criminal Procedure Code is more appropriate in the circumstances of the case it can initiate proceedings under S.143 of the Criminal Procedure Code. (Vide 15. T.L.J. 375 at page 379). Whether after proceeding under S.103 Crl. P.C. it will be proper for a Magistrate to act under S.143 must depend on the circumstances of each case". (Vide 15. T.L.J. 375 at page 379). Whether after proceeding under S.103 Crl. P.C. it will be proper for a Magistrate to act under S.143 must depend on the circumstances of each case". (Vide XII I.C. 833). 4. It was therefore the duty of the Magistrate to have considered the application of the first counter-petitioner on the merits. The order under revision is therefore set aside and the learned Magistrate is directed to consider the application of the 1st counter-petitioner on the merits and decide the question raised therein in accordance with law and in the light of the foregoing observations before further proceeding with the enquiry under S.113 of the Criminal Procedure Code. Petition Allowed.