RABINDRA KUMAR BHATTACHARJEE v. DHARMA GOUR — 1971 DIGILAW 4 (GAU)

ORDER To appreciate the legal point involved in this reference made by the Additional Sessions Judge. Tripura, under section 438 Cr.P.C., the relevant facts must be briefly set out. The revision petitioner Rabindra Kumar before the Additional Sessions Judge complained to the Officer-in-charge of the police station at Dharmanagar that there was apprehension of breach of peace in respect of 5 kanis of land situate in village Dewan Pasha. That Officer-in-Charge made inquiry into that complaint and then submitted a report to the Magistrate First Class. Dharmanagar, on 23-11-1968 stating that there was actually an apprehension of breach of peace over the possession of the land mentioned between Rabindra Kumar on one hand and Dharma Gour and his seven associates, the respondents herein, on the other. The learned Magistrate passed preliminary order under sub-section (1) of section 145 Cr.P.C. on the same date and simultaneously directed attachment of the land. He issued notices to the two parties calling upon them to put in written statements, affidavits and documents in support of their rival claims by 17-12-1968. On 28-11-1968 Rabindra Kumar, mentioned as first party in the preliminary order, moved an application praying to the Magistrate for sale by auction of the crops then standing on the land in dispute. Notice of this application was issued to the second party for 2-12-1968. In the meanwhile, Dharma Gour, one out of the right person constituting the second party, petitioned the Magistrate for dropping the proceedings under section 145 on the footing that he had been in undisputed possession of the land in dispute over along period and that there did not exist, nor had ever existed, any dispute of the nature mentioned in sub-section (1) of section 145 respecting that land. It is not clear from the record whether notice of this petition of Dharma Gour was issued either to his seven associates of the second part to Rabindra Kumar, the first party, Neither the application of Dharma Gour bears any order dated 30th of November, 1968, or of any subsequent date, not the order-sheet indicates that notice of that application was sent to other persons on the record. The order-sheet contains two brief orders subsequent to the preliminary order dated 23-11-1968. One of them is dated 3rd of December, 1968. The former reads : "Both parties present. Heard 2nd party To 4-2-1968". The order-sheet contains two brief orders subsequent to the preliminary order dated 23-11-1968. One of them is dated 3rd of December, 1968. The former reads : "Both parties present. Heard 2nd party To 4-2-1968". The second order runs thus : "Both parties present, Heard first party. To 11-12-68". It was on 11-12-1968 that the Magistrate passed an order dropping (5) of section 145 Cr.P.C. and vacated the attachment. At the same time he declared that "The 2nd party which is in possession of the land will remain so until evicted in due course of law" and added that "The produce of the land will naturally go with 2nd party". 2. Aggrieved by that order of the Magistrate, Rabindra Kumar took the matter in revision to the Court of Session. The revision petition came up for hearing before Shri S. M. Ali, the Additional Sessions Judge, who, by his order dated 29th of May, 1970, has made a reference to this Court recommending that the order dated 11-12-1968 of the Magistrate should be quashed and the case remitted to him with the necessary directions. 3. Shri R. Ghosh representing the revision petitioner, submitted that his client having not been afforded an opportunity to argue the petition made by Dharma Gour for cancellation of the preliminary order and dropping the proceedings, the impugned order must be set aside and the case remanded to the Magistrate for proceeding therewith according to the provisions of law. Another point raised by Shri Ghosh was that while dropping the proceeding under sub-section (5) the Magistrate has no jurisdiction to give a finding which one out of the parties in contest was in possession of the land on the date of the preliminary order or to declare that that party shall continue in possession until evicted therefrom in due course of law. Shri A. K. S. Choudhury, appearing for the second party, very fairly conceded that the Magistrate could not have declared the possession of second party over the land in dispute, nor issued a direction that the possession of that party shall not be disturbed until evicted in due course of law, while dropping the proceedings under sub-section (5). Shri A. K. S. Choudhury, appearing for the second party, very fairly conceded that the Magistrate could not have declared the possession of second party over the land in dispute, nor issued a direction that the possession of that party shall not be disturbed until evicted in due course of law, while dropping the proceedings under sub-section (5). However, he joined issue with Shri Ghosh on the point that the revision petitioner had not been afforded an opportunity to address the Court in regard to the prayer made by Dharma Gour in his petition dated 30th of November, 1968. He read a passage from the impugned order in support of his contention that ample opportunity had been given to the parties to address arguments respecting that prayer of Dharma Gour. 4. Sub-section (5) of section 145 Cr.P.C. provided that nothing in the section shall preclude any party required to attend or any other person interested from showing that no dispute of the nature mentioned in sub-section (1) exists or has existed, and that in such a case the Magistrate shall cancel his preliminary order and all further proceedings thereon shall be stayed. On plain reading of the section it is manifest that once the preliminary order is cancelled all further proceedings in the case have, to be staved, or in other words, the Magistrate ceases to have jurisdiction to deal with the question as to who was in possession of the land on the date of the Preliminary order. Further, Thokchom v. Thangba, AIR 1970 Manipur 12 , is an authority for the propositions that the preliminary order can be cancelled only if the Magistrate feels satisfied that no dispute concerning the land involved exists on the date when such a representation is made to him or had existed before that mere representation of a party that there was no dispute is not enough to justify the Magistrate cancelling the order, and that it is the finding of the Magistrate that the dispute does not exist at present or had not existed before which alone can provided him the legal sanction for cancellation of the preliminary order. However, surprisingly enough, in the present case the Magistrate did not record a finding that no dispute respecting the land had ever existed or was in existence between the parties. The relevant finding reached by the Magistrate was. However, surprisingly enough, in the present case the Magistrate did not record a finding that no dispute respecting the land had ever existed or was in existence between the parties. The relevant finding reached by the Magistrate was. "From perusal & discussion of the documents furnished by the 2nd party it can be reasonably decided that the 2nd party continues to be in actual possession of the land & it has not been disturbed, 1st party has not been in actual possession of the land. Naturally there can be no apprehension of breach of peace unless the 1st party disturbs the possessions of the 2nd party without resorting to due course of law." I remain unconvinced that these findings amount to stating that there was no dispute between the parties in regard to possession of the land involved. It would not be out of place to mention that Rabindra Kumar, the first party, had moved the police for taking steps for forestalling the apprehended breach of peace, the police on inquiry had reached the conclusion that there was apprehension of breach of peace and so had approached the Magistrate for taking action under section 145. The Magistrate passed the preliminary order on agreeing with the report of the police and thereafter Rabindra Kumar requested the Magistrate for sale of the crops standing on the land which had earlier been attached. In face of this formidable data, it was really bold of the Magistrate to take recourse to sub-section (5). At any rate, in the absence of a clear-cut finding that there had never been, nor was at present a dispute of the nature mentioned in sub-section (1) respecting the land in dispute, the Magistrate had clearly transgressed his jurisdiction in accepting the petition of Dharma Gour for dropping the proceedings. 5. There also appears to be sub-stance in the contention of Shri Ghosh that Rabindra Kumar had not been given opportunity to appose the prayer made by Dharma Gour for dropping the proceedings. There is nothing on the record to indicate that notice of Dharma Gour's application dated 30th November, 1968, had been formally issued to Rabindra Kumar. Shri Choudhury relied upon the orders dated 3rd and 4th of December, 1968, reproduced above to support his submission that the Magistrate had given amble opportunity to Rabindra Kumar to oppose the prayer made in the application dated 30the of November, 1968. Shri Choudhury relied upon the orders dated 3rd and 4th of December, 1968, reproduced above to support his submission that the Magistrate had given amble opportunity to Rabindra Kumar to oppose the prayer made in the application dated 30the of November, 1968. He also relied upon the observation in the impugned order that "The learned counsel on both sides discussed in length" in the same connection. However, I remain unconvicned that Rabindra Kumar had been afforded an opportunity to oppose the prayer for dropping the proceedings in the manner required by law. The order dated 3rd December only says that both the parties were present and the second party had been heard. It is not apparent in what connection that hearing had been held. The next order dated 4th December also suffers from identical vagueness. The quoted observation from the impugned order does not make us wiser. A perusal of that order reveals that main attention was devoted to the discussion of the case on merits and the documents placed on record by Dharma Gour along with his application dated 30th of November, 1968, were relied upon in that respect. Therefore I feel safe in concluding that arguments were heard by the Magistrate on two days respecting the merits of the main case rather in regard to the prayer made by Dharma Gour for terminating the proceedings. 6. I have stated above that Shri Choudhury could not support the legal validity of the declaration made by the Magistrate that the second party is in possession of the land, nor of the direction given by him that the possession of second party shall not be disturbed until they are evicted from the land in due course of law. In the case of Thokchom, AIR 1970 Manipur 12 (supra) it was held that the apprehensions of breach of the peace being the basis of the jurisdiction of the Magistrate to proceed under section 145, he cannot make an order of the nature mentioned in sub-sections (4) and (6) if he is satisfied that there is no such likelihood and as a consequence he drops the proceedings under sub-section (5). With the cancellation of the preliminary order, it was held further, the Magistrate becomes functus officio except of course to pass orders necessary to wind up the proceedings, and so he ceases to have jurisdiction to pass an order that one of the two contestants should not interfere with the possession of the other over the property in dispute. In other words, it was pointed out, the Magistrate cannot simultaneously act with under sub-section (5) and under sub-section (4) read with sub-section (6), and that once the Magistrate cancels the preliminary order it befits him to ensure that none out of the parties arrayed before him gets an advantage at the expense of the other and that the ideal step to take on cancellation of the preliminary order under sub-section (5) would be to before the parties to the status quo ante. It cannot be gainsaid that in the present case the Magistrate had acted both under sub-section (5) as well as under sub-section (6). He elaborately discussed the various documents filed by Dharma Gour along with his petition dated 30th of November, 1968 and on the basis thereof recorded the finding that the second party had been in possession of the land for a long time. He declared further that Rabindra Kumar is a recorded raiyat, while Dharma Gour is a korfa tenant, in respect of the land in dispute. The discussion done and the conclusions reached leave no scope for doubt on the point that the Magistrate had adjudged the merits of the case just as he would have done if the case had proceeded to its logical conclusion after submission of the written statements, affidavits and documents by the parties in support of their rival claims. Obviously the Magistrate could not have adopted that course while accepting the petition made by Dharma Gour under sub-section (5) for dropping the proceedings. 7. A brief reference may now be made to the decision in Jhabbooo v. Laxmi Narayan, AIR 1970 All 595 , which was cited by Shri Choudhury in support of the impugned order. The relevant proposition enunciated in the case was that a Magistrate acting under section 145 has inherent jurisdiction to pass incidental orders with regard to disposal of the attached property after the proceedings have been dropped by him under sub-section (5). The relevant proposition enunciated in the case was that a Magistrate acting under section 145 has inherent jurisdiction to pass incidental orders with regard to disposal of the attached property after the proceedings have been dropped by him under sub-section (5). An earlier decision of Allahabad High Court in Emperor v. Rajdeo Singh, AIR 1948 All 425, was cited with approval. In the latter case it was held that when proceedings are dropped under section 145(5) on the ground that there never existed a dispute likely to cause a breach of the peace, the Magistrate's jurisdiction to act under the provisions of section 145 altogether ends and as such he can only pass an, incidental order relating to the attached property. It was observed further that if the Magistrate enters into a minute examination as to the claims of the respective parties regarding the fact of actual possession on the date of the initial order he will be doing precisely what he is not empowered to so. It is evident that neither the decision in the case of Jhabboo nor the proposition enunciated in the case of Rajdeo renders any support to the verdict given by the Magistrate respecting the merits of the dispute while dropping the case under sub-section (5). 8. For the reasons stated above I accept the recommendation made by the learned Additional Sessions Judge and on quashing the order dated 11-12-1968 of the Magistrate remand the case to him with the direction that he should dispose it of afresh. He will on summoning the parties, firstly decide the fate of the application dated 30th of November, 1968, made by Dharma Gour and if that application fails he shall proceed further with the case after allowing an opportunity to the parties to put in their written statements affidavits and documents in support of their claims to the possession of the land in dispute. Nothing said in this order shall be deemed to have expressed any opinion on the merits of the application dated 30th of November, 1968 or of the dispute as to which of the two contestants was in possession of the land on 23-11-1968 the date of the preliminary order. Case remanded.