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Allahabad High Court · body

1954 DIGILAW 154 (ALL)

Lakhan Singh v. Girdhari

1954-07-14

R.SINGH

body1954
JUDGMENT R. Singh J. 1. This a reference by the learned Additional Sessions Judge of Sitapur recommending that an order passed by the Sub-Divisional Magistrate of Sitapur in proceedings u/s 145 Cr.P.C. be set aside and the case be sent back to the learned Magistrate for proceeding with it according to law. 2. It appears that an application was made u/s 145 Cr.P.C. by one Lakhan Singh praying that proceedings be taken against the opposite-party Girdhari as there was a likelihood of a breach of the peace with regard to certain plots of land which were in the occupation and tenancy of the applicant. A police report was then called for and on receipt of it the Magistrate passed an order expressing his satisfaction that there was a likelihood of a breach of the peace. He ordered attachment of the plots and further proceedings followed. 3. On the 26th August, 1953, Raghubar, who was not originally a party, made an application purporting; to be u/s 145(5) Cr.P.C. In his application dated the 26th August, 1953, Raghubar prayed that there was no apprehension of a breach of the peace regarding the plots as he had been cultivating these plots for a long time and that the proceedings under Section- 145 Cr.P.C. may be terminated. A reference was also made in this application to an earlier application dated the 23rd June, 1953, made by Lakhan Singh himself in which he had admitted that he was not in possession of the plots in dispute and that the opposite party was unwilling to make over possession of the plots to him. On receipt of this application by Raghubar the learned Magistrate ordered that it be put up on the date of hearing. Arguments were then heard on the 30th September, 1953, and in the course of the arguments reliance was placed on the application said to have been made by Lakhan Singh on the 23rd June, 1953. The learned Magistrate then passed an order terminating proceedings u/s 145(5) Cr.P.C. as he was satisfied that there was no existence of any likelihood of breach of the peace. The applicant Lakhan Singh then went up in revision to the Sessions Judge who has made the reference which is before me. 4. The learned Magistrate then passed an order terminating proceedings u/s 145(5) Cr.P.C. as he was satisfied that there was no existence of any likelihood of breach of the peace. The applicant Lakhan Singh then went up in revision to the Sessions Judge who has made the reference which is before me. 4. It has been pointed out by the learned Sessions Judge that the Sub-Divisional Magistrate was not justified in taking into consideration the application dated the 23rd June, 1953, without giving Lakhan Singh an opportunity to explain or deny it and the Magistrate's order based on a consideration of the application dated the 23rd June, 1953, in such circumstance should be set aside. 5. The point involved in this case is not altogether free from difficulty and the learned Counsel who has appeared in support of the reference as also the learned Counsel for the opposite-party have placed before me a number of rulings of the various High Courts on the point in issue in this case. It has been argued on behalf of the opposite-party that a Magistrate's discretion to terminate proceedings initiated u/s 145 Cr.P.C. is unfettered and that if at any stage of the proceedings he is satisfied that there was no likelihood of a breach of the peace either initially or during the pendency, of proceedings it was open to the Magistrate to terminate the proceedings. It will be useful to refer to the provisions of Section 145(5) Cr.P.C. which are as follows: Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final. 6. A perusal of Section 145(5) quoted above clearly shows that once a Magistrate has assumed jurisdiction u/s 145 Cr.P.C. he has to adopt a certain procedure but in spite of all that, the procedure did not preclude any party or any other person interested from showing to the Magistrate that no dispute which was likely to cause a breach of the peace existed and in such circumstances the Magistrate shall terminate the proceedings. In Manindra Chandra Nandi v. Barada Kanta Chowdhary ILR Call. In Manindra Chandra Nandi v. Barada Kanta Chowdhary ILR Call. 112 which has been followed in some Madras cases-vide Devasthanam v. A. Sambandamurthi Nainar 1952 Cr.L.J. 115. It has been held that a Magistrate in proceedings u/s 145 Cr.P.C. has unfettered discretion to terminate proceedings if at any time he is satisfied that there was no further likelihood of a breach of the peace. With great respect to the learned Judges who have expressed the view in the rulings quoted above it may not be possible to go exactly to the length the learned Judges have gone in these cases but Section 145(5) Cr.P.C. does give to the Magistrate discretion in certain circumstances to terminate the proceedings and these circumstances are that any party who is required to attend the proceedings or any other person interested shows to the Magistrate that no dispute likely to cause a breach of the peace existed. A Magistrate may not, therefore, be justified in terminating the proceedings in his discretion but if any of the parties or any person interested satisfies the Magistrate that there was no likelihood of a breach of the peace he will certainly be within this rights to terminate proceedings. 7. In the present case an application was made by Raghubar to the effect that the plots in dispute were in his cultivation and, possession and reliance was also placed on the application said to have been made by Lakhan Singh, applicant, himself on the 23rd June, 1953, which supported the allegations made by Raghubar. The main grievance of the applicant before the Sessions Judge was that the Magistrate did not put to him the application dated the 23rd June, 1953, on which reliance was placed by him. The applicant nowhere denied his signatures on the application nor was any objection taken by him before the Magistrate at the time of the arguments. It was open to the applicant to have pointed out to the learned Magistrate, if in fact the application relied on by the Magistrate did not bear his signatures, that the application was a forgery or to say that he had a certain explanation to offer. It was open to the applicant to have pointed out to the learned Magistrate, if in fact the application relied on by the Magistrate did not bear his signatures, that the application was a forgery or to say that he had a certain explanation to offer. Orders passed u/s 145 Cr.P.C. are not appealable and it would not be proper to interfere with such orders except where there has been some grave miscarriage of justice or if the rights of any of the parties to the proceedings have been seriously jeopardised on account of some faulty procedure on the part of the Magistrate. It would no doubt have been better if the learned Magistrate had asked Lakhan Singh about his application and would have heard his objections, if any; but the omission of the applicant to contest his signatures before the Magistrate in itself shows that he is relying merely on a technical defect which should not be taken into consideration in an application for revision. 8. Taking all these circumstances into consideration I do not think it fit to accept the recommendation made by the learned Sessions Judge. The reference is therefore rejected.