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1973 DIGILAW 76 (BOM)

LEOPOLDINE B. GRACIAS v. VASSUDEVA R. P. MALLAR

1973-06-30

TITO MENEZES

body1973
ORDER In this Reference the Additional District and Sessions Judge, Margao, has recommended that the order dated 21-4-1970 of the Sub-Divisional Magistrate passed under Section 145, Cr.P.C., whereby declared that the respondent No. 1 was in possession in respect of the land in dispute, be set aside. The grounds on which the recommendation is based are :- (1) that there was no sufficient evidence before the Magistrate to show that there was a likelihood of the breach of the peace. (2) that the preliminary order issued under Section 145 is non-speaking order and (3) that the Magistrate has not considered the affidavits etc. filed by the petitioners and thereby has acted illegally. 2. Before I enter into the merits of this reference one fact that has to be considered by me is an authority of the Supreme Court in R. H. Bhutani v. Mani J. Desai reported in AIR 1968 SC 1444 = (1969 Cri LJ 13) which deals with a similar case under Section 145, Cr.P.C. In that case the Bombay High Court had set aside the order of the Magistrate issued under Section 145, Cr.P.C. on the grounds that the Magistrate had failed to record in his preliminary order the reasons for his satisfaction and also on the ground that there was no sufficient material before the Magistrate for issuing the preliminary order. The Supreme Court has held as follows :- "The satisfaction under sub-section (1) of S. 145 is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is, therefore, in his discretion which, no doubt has to be exercised in accordance with the well-recognised rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub-section is clear and unambiguous that he can arrive at his satisfaction both from the police report or "from other information" which must include an application by the party dispossessed. The High Court in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate." The Supreme Court also observed as follows :- "The question is whether the preliminary order passed by the Magistrate was in breach of Section 145(1), that is in the absence of either of the two conditions precedent. One of the grounds on which the High Court interfered was that the Magistrate failed to record in his preliminary order the reasons for his satisfaction. The section, no doubt requires him to record reasons. The Magistrate has expressed his satisfaction on the basis of the facts set out in the application before him and after he had examined the appellant on oath. That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction." From the above observations of the Supreme Court two propositions clearly follow : The first, that the failure to record reasons does not necessarily vitiate the preliminary order if there is material before the Magistrate to show that there was a "dispute" and "likelihood" of the breach of the peace; and the second that the High Court in the exercise of its revisional jurisdiction would not go into the question of sufficiency of material which has satisfied the Magistrate. 3. The preliminary order issued by the Magistrate in this case begins with the words "whereas it is reported and I am satisfied that there is a likelihood of breach of peace between both the parties regarding the dispute of actual possession of land known as "Georgina" situated at Loliem, Taluka Canacona, etc. From these words it is abundantly clear that the learned Magistrate was satisfied about the likelihood of breach of the peace in respect of certain land in dispute. The words "it is reported" necessarily lead us to the inference that it was reported by the Police in other words that his satisfaction about the breach of peace and of the existence of a dispute was based on the Police report. In the present case, therefore, the first two grounds upon which the recommendation was made would not stand in view of the above decision of the Supreme Court unless it is shown that there was no material whatsoever before the Magistrate to issue an order under Section 145 Cr.P.C. But that is not the case. I find that there was a Police report wherein the Police have clearly stated that the parties were likely to come to clash and the dispute is likely to induce a breach of the peace. Besides, there is a number of statements recorded by the Police which go to show that there was likelihood of breach of the peace. I find that there was a Police report wherein the Police have clearly stated that the parties were likely to come to clash and the dispute is likely to induce a breach of the peace. Besides, there is a number of statements recorded by the Police which go to show that there was likelihood of breach of the peace. Whether that material was sufficient or not is not for this Court to go into. 4. The second point namely that the learned Magistrate has not given reasons in his preliminary order and that therefore the proceedings are vitiated is no longer good reasoning and the authorities on the point, holding this view are no longer good law in view of the above cited decision of the Supreme Court. It is correct that the learned Magistrate did not mention reasons in his preliminary order. But in view of the material that was placed before the Magistrate, that material will have to be read as reasons which led the Magistrate to take action under Section 145, Cr.P.C. and hence his preliminary order cannot be said to be bad in law. 5. The third ground which the Additional Sessions Judge has considered was that the learned Magistrate did not pursue the affidavits. I have gone through the order of the Magistrate. In paragraphs 3, 4 and 5 of his order he has discussed the affidavits and other documents filed by both the parties and has given reasons as to why he believes the affidavits of one and disbelieves that of other. It is not necessary for the Magistrate to discuss each and every affidavit. It is enough if his order makes it apparent that he has applied if his mind to the material on record. I am convinced upon the perusal of the order of the learned Magistrate that he had applied his mind to the material on record. Therefore, the third ground upon which he recommendation is made by the Additional Sessions Judge is also not tenable. 6. In the result I decline to accept this reference. ORDER 7. The Reference is rejected. Reference rejected.