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1971 DIGILAW 181 (MP)

AKBARALI v. PYARA

1971-12-02

P.K.TARE

body1971
JUDGMENT : ( 1. ) THIS is a revision by a party to proceedings under section 145 criminal Procedure Code against the order of the Third Additional Sessions judge, Ujjain, in Criminal Revision No. 41 of 1969, dated 9-7-1971, affirming the order, dated 5-3-1969, passed by the Sub-Divisional Magistrate, Ujjain in Criminal Case No. 94 of 1968. ( 2. ) THE petitioner made a report to the Sub-Divisional Magistrate on the allegation that there was a likelihood of a breach of the peace in respect of an open piece of land having Municipal No. 3/1904, measuring 65 feetx34 feet and that the respondents wanted to obstruct the construction proposed to be made by the petitioner. The police also had filed a challan in that behalf the trial Magistrate passed a preliminary order and noticed the opposite party to put in its written statement. On behalf of the respondents, it was asserted that there was no likelihood of a breach of the peace. The learned Magistrate recorded some findings, which were against the petitioner and ultimately, dismissed the petitioners complaint. Against that order a revision was filed by the petitioner. The learned Additional Sessions Judge recorded two findings in favour of the petitioner, but ultimately dismissed the revision on the ground that the finding of the trial Magistrate about there being no likelihood of a breach of the peace was correct. Hence this Court has been moved under section 439, Criminal Procedure Code. ( 3. ) AT this stage it might also be mentioned that the petitioner has also filed a Civil Suit claiming title to the property. The contention of the learned counsel for the petitioner is that once the Magistrate passed a preliminary order under sub-section (1) of section 145, Criminal Procedure Code, he had no jurisdiction to go into the question of a likelihood or otherwise of a breach of the peace and his inquiry should have been confined to the fact of possession alone. For this proposition he relies on the observations of S. K. Kapur, J. in Hari Ram v. Banwari Lal (AIR 1967 Pun. 378. ). For this proposition he relies on the observations of S. K. Kapur, J. in Hari Ram v. Banwari Lal (AIR 1967 Pun. 378. ). It is true that the learned Judge placing reliance on some earlier cases held that once the Magistrate passed a preliminary order under sub section (1) of section 145, Criminal Procedure Code he would have no jurisdiction to go into the question of likelihood or otherwise of a breach of the peace in the inquiry contemplated under sub-section (4) of section 145, criminal Procedure Code and such inquiry ought to be confined to the question of possession only. With due respect to the learned Judge I am unable to accede to that proposition which, in my opinion, has been rather broadly stated and which altogether does not take into consideration the wording of sub-section (5) of section 145, Criminal Procedure Code. If I put the proposition correctly, it is the right of a person required to attend or any other person interested by virtue of sub-section (5) of section 145, Criminal Procedure Code to show that no such dispute as aforesaid exists or has existed. The preliminary order under sub-section (1) of the section is necessarily passed exparte when the other side has not appeared before the Magistrate. Therefore, the right of the other party to show that no dispute exist or has existed has been kept intact by sub section (5) of section 145 Criminal Procedure Code and that right cannot be nullified by propounding a broad based proposition that the inquiry contemplated by sub-section (4) of the section should be confined to the question of possession only and not to the question of likelihood or otherwise of a breach of the peace. If that broad based proposition were to be accepted, it will nullify the right conferred by sub-section (5) of section 145. ( 4. ) THE learned counsel for the petitioner also invited attention to the observations of Naik J. in Moolchand v. State of M. P. (1968 MPLJ 241 = (1968 JLJ 373 ) ). I may observe that I am in respectful agreement with the view expressed by Naik J. in the said case, which does not at all support the broad based proposition propounded by s. K. Kapur J. in Hari Ram v. Banwarilal. I may observe that I am in respectful agreement with the view expressed by Naik J. in the said case, which does not at all support the broad based proposition propounded by s. K. Kapur J. in Hari Ram v. Banwarilal. Similarly, attention was invited to the observations of Bhave J. in State of M. P. v. Mehtabchand (Crimtcal Revision No. 28 of 1968, dated,16-4-1968= (1970 MPWR Note 176.) ). I am in respectful agreement with the view expressed by Bhave J. in the said case and I propose to propound the proposition which, in my opinion, will be correct having in view the provisions of sub-sections 4 and 5 of section 145, Criminal procedure Code and it will be a workable proposition so far as such proceedings are concerned. The proposition that I propound is that the Magistrate after passing a preliminary order under sub-section (1) of section 145 Criminal Procedure Code is required to hold an inquiry as contemplated by sub-section (4) of the said section. Ordinarily, he is not required to re-examine the question of likelihood of a breach of the peace. If the other side does not dispute that fact and does not furnish any material, the inquiry under sub-section (4) will necessarily be confined to the question of possession only. But, it is to be noted that it is the right of the other side by virtue of sub-section (5)to show that no dispute exists or existed. For this reason I agree with the view of Bhave J. in State of M. P. v. Mehtabchand (supra) that once the preliminary order is passed, it will continue and the Magistrate will not be required to re-examine the question all over again after the other side has appeared and put in the necessary material and the presumption of continuance of a likelihood of a breach of the peace will apply. But, if on the other hand, the other side asserts that no dispute exists or ever existed, that right of the other side cannot be defeated by propounding such a broad based and untenable proposition that the inquiry must be confined to the question of possession only. The other side has a right to show that no such dispute exist or has existed. The other side has a right to show that no such dispute exist or has existed. In that event, the other side has to put in material and the Magistrate is duty bound to re-examine the question of likelihood of a breach of the peace. Such a reexamination will, however, not be necessary if the other side has not asserted that there was no likelihood of a breach of the peace or has not put in the necessary material contrary to the preliminary order passed under sub-section (1) of section 145 Criminal Procedure Code. Therefore, I would agree with the Punjab view to a limited extent, but would dissent from it so far as the right of the other side to show that no dispute exist cannot be taken away by propounding that proposition. In the present case there is a clear finding of the learned Additional Sessions Judge that there was no likelihood of a breach of the peace and, therefore, I do not think that any interference with that conclusion is possible in the present revision. ( 5. ) THE learned counsel for the petitioner further urged that the learned additional Sessions Judge has no jurisdiction to examine the question of fact, especially when the trial Magistrate had not recorded a proper finding on that question. I may observe that ordinarily question of fact are not open at the revisional stage. But, if the Court below has erred in discussing the question properly upon the material on record, it is the duty of the revisional Court to record clear findings even though they may be questions of fact and the revisional Court would be failing in its duty if it fails to record clear findings on questions of fact when the Trial Magistrate has failed in his duty to record such a finding. ( 6. ) MOREOVER, the petitioner having already resorted to the alternative remedy of filing a title suit, it is not necessary for this Court to go into the question in a second revision. Of course, despite the finding of the suit, the proceedings under section 145, Criminal Procedure Code can be continued and they are not required to be dropped automatically. But, ultimately the decision of the Criminal Court is subject to the result of the Civil Suit. Of course, despite the finding of the suit, the proceedings under section 145, Criminal Procedure Code can be continued and they are not required to be dropped automatically. But, ultimately the decision of the Criminal Court is subject to the result of the Civil Suit. In view of this aspect, I do not think that this Court ought to entertain a revision and even if it were to be assumed that there might be a likelihood of a breach of the peace, the petitioner can get the necessary relief from the Civil Court by seeking an injunction against the respondents. ( 7. ) AS a result of the discussion aforesaid, this revision fails and is accordingly dismissed summarily without notice to the other side. Revision dismissed.