Raja Lal Singh v. Ram Prasad Singh — 1975 DIGILAW 21 (PAT)

Judgment NAGENDRA PRASAD SINGH, J. 1. This application in revision is directed against an order, dated the 28th March, 1972, passed by the acting Sub-Divisional Magistrate, Siwan, purporting to convert in proceeding under Sec.144 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code") into one under Sec.145 of the Code. The petitioners were members of the second party to the said proceeding. 2. It appears that, on the 30th October, 1971, the members of the first party-opposite party filed a petition before the Sub-Divisional Magistrate for action under Sections 107 and 144 of the Code against the petitioners, alleging, inter alia, that the petitioners were persons of desperate character and they were trying to take forcible possession of the lands of Khata No. 56, which were in peaceful possession of the opposite party. In the said petition they set out in detail their claim over the plots in question. The Sub-Divisional Magistrate sent the said petition to the local police for inquiry and report. After inquiry, the police submitted a report. On the 25th January, 1972, the Sub-Divisional Magistrate passed an order saying that from the petition filed by the members of the first party and the report of the police, he was satisfied that there was an apprehension of a breach of the peace in relation to five plots, namely, Plot Nos. 671, 830, 1086, 1142 and 1253, of Khata No. 56, measuring about 2 bighas 6 kathas and 7 dhurs, situate in village Nathu Chhap, P.S. Siwan. He therefore directed that a proceeding under Sec.144 of the Code be drawn up and the parties be called upon to show cause as to why the same be not made absolute against them. He further restrained both the parties from going upon the lands in question. 3. Both parties filed their show cause, and the learned Sub-Divisional Magistrate, after hearing the parties, on the 28th March, 1972 passed the impugned order. He has first mentioned the details of the disputed lands in the impugned order and thereafter he has referred to the aforesaid police report and as to how the proceeding under Sec.144 of the Code was drawn up and both parties were restrained from going upon the lands in question. He has first mentioned the details of the disputed lands in the impugned order and thereafter he has referred to the aforesaid police report and as to how the proceeding under Sec.144 of the Code was drawn up and both parties were restrained from going upon the lands in question. Then he has stated that he heard both parties and looked into their show cause petitions from which it appeared to him that both the parties were claiming possession of the lands in question. The learned Magistrate, thereafter, set out in detail the respective claims of the parties to the lands in question. Towards the end he observed that, after perusing the record, he was satisfied that there was a dispute between the parties in relation to lands on account of which there was an apprehension of a breach of the peace, and, as such he was converting the proceeding under Sec.144 into one under Sec.145 of the Code. In this connection he also referred to an earlier proceeding under Sec.144 between the parties which had been dropped on the 26th October, 1971. 4. This case was first placed before a learned Single Judge of this Court, who has referred it to a Division Bench for consideration of the legality of the order in question. 5. Learned Counsel appearing for the petitioners has urged that the impugned order is, per se, illegal, inasmuch as the learned magistrate had no jurisdiction to convert the proceeding under Sec.144 into one under Sec.145 of the Code after the expiry of a period of two months, meaning thereby that the proceeding under Sec.144 had been drawn up on the 25th January, 1972, which, by lapse of the statutory period of two months, had lost its force, and, on the 28-3-1972 there was no proceeding under S.144 pending which could have been converted into one under Sec.145 of the Code. 6. Magistrates have been empowered by the Code to exercise certain powers for maintaining peace, and, for that, they can pass orders in exercise of the powers conferred under Sections 107, 144 and 145 of the Code, when there is an apprehension of a breach of the peace. 6. Magistrates have been empowered by the Code to exercise certain powers for maintaining peace, and, for that, they can pass orders in exercise of the powers conferred under Sections 107, 144 and 145 of the Code, when there is an apprehension of a breach of the peace. It has been held by a series of decisions that it is open to a Magistrate to initiate a proceeding under Sec. 107 or Sec.144 even in cases where the apprehension of a breach of the peace is in relation to land; but it has been pointed out that it is proper that when the apprehension is in relation to land, action under Sec.145 of the Code should be taken and the Magistrate should decide as to which of the rival claimants was in possession of the subject of dispute on the date of the proceedings. In the Code there is no specific provision for converting a proceeding under Sec.144 into one under Sec.145, and whenever a Magistrate purports to convert a proceeding under Sec.144 into one under Sec.145, it has to be taken that, for all practical purposes, he had drawn up a fresh proceeding under Sec.145. This aspect of the matter has been considered by a Bench of this Court in Mossammat Bimla Devi V/s. Sobhnath Mahamarik, (Crl Revn. No. 1919 of 1970 disposed of on the 13-8-1974 (Pat)), where it was observed :- "It is true that there is no specific provision in the Code for converting a proceeding either under Sec.144 or under Sec.107 into one under Sec.145, and it has to be held that, for all practical purposes, when it is stated that any such proceeding is being converted into one under Sec.145, it amounts to drawing up a proceeding under Sec.145." 7. In the instant case, the fact the learned Magistrate, in the impugned order, has said that he was converting the proceeding under Sec.144 into one under Sec.145, in my opinion, is not of much consequence. In the instant case, the fact the learned Magistrate, in the impugned order, has said that he was converting the proceeding under Sec.144 into one under Sec.145, in my opinion, is not of much consequence. Whenever a proceeding under Sec.145 is drawn up either during the pendency of a proceeding under Sec.144, or on the eve of the expiry of the proceeding under Sec.144, or after the expiry of the force of the proceeding under Sec.144, there is nothing like continuity between the proceeding under Sec.144 and the proceeding under Sec.145, because the Magistrate in the proceeding under Sec.145 is not to decide as to which of the parties was in possession on the date the proceeding under Sec.144 was drawn up; but he has to decide as to which of the parties was in actual physical possession of the subject of dispute on the date of the proceeding, that is, the date on which the proceeding under Sec.145 was drawn up. A reference can be made in this connection to a Bench decision of this Court in Lakshami Narain Singh V/s. Jugeshwar Jha, AIR 1954 Pat 169 : (1954 Cri LJ 443), where it was held that the words "decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject" occurring in Sec.145(4) refer to the date of the initiation of the proceeding under Sec.145, and not to the date of the initiation of the proceeding under Sec.144 of the Code. Thus, even if the order purporting to convert a proceeding under Sec.144 into one under Sec.145 is passed after the expiry of the period of two months from the date of the initiation of the proceeding under Sec.144, but the said order is in conformity with the requirements of Sec.145(1), then the said order or further proceedings taken in pursuance of the said order cannot be held to be illegal and without jurisdiction. On the other hand, if the Magistrate passes the order simply converting the proceeding under Sec.144, which has spent its force, into one under Sec.145, without fulfilling the requirements of Sub-Section (1) of Sec.145, different consideration may arise. On the other hand, if the Magistrate passes the order simply converting the proceeding under Sec.144, which has spent its force, into one under Sec.145, without fulfilling the requirements of Sub-Section (1) of Sec.145, different consideration may arise. However, even in such cases a distinction has to be made between cases where the person aggrieved approaches this Court without taking a chance of the final order under Sec.145, and cases where the party aggrieved has waited till the final order is passed against him. In the first category of cases, this Court, in exercise of its revisional powers under Sections 435 and 439 of the Code, may quash the order, but in the latter category of cases, the petitioner may be faced with a series of cases of this Court where it has been held that, if the party takes the chance of getting a favourable order passed in his favour, then, he cannot question the initial order converting the proceeding under Sec.144 into one under Sec.145, on principles and estoppel. A reference in this connection can be made to the aforesaid case of Bimla Devi, (Cri. Revn. No. 1919 of 1970, D/-13-8-1974 (Pat)) and that of Shibnarayan Das V/s. Satyadeo Prasad, (AIR 1943 Pat 44 : (1943) 44 Cri LJ 25). 8. Learned Counsel for the petitioners has, however referred to certain decisions in support of his contention that a proceeding under Sec.144 of the Code cannot be converted into a proceeding under Sec. 145 after the expiry of the statutory period of two months. He has, first, referred to a decision of the Orissa High Court in Hadu Khan V/s. Mahadev Das, AIR 1968 Ori 221 : (1968 Cri LJ 1623). In that case, on the basis of a police report, dated the 20th June, 1965, a proceeding under Sec.144 was initiated on the 28th June, 1965. Later, the Magistrate, by his order dated the 20th August, 1965, converted the said proceeding under Sec.144 into one under Sec.145 of the Code; but no notice, however, was issued in pursuance of this order and nothing further in accordance with the requirements of Sec.145 was done. On the 11th September, 1965, a fresh preliminary order was passed under Sec.145 on the basis of the earlier police report, dated the 20th June, 1965. On the 11th September, 1965, a fresh preliminary order was passed under Sec.145 on the basis of the earlier police report, dated the 20th June, 1965. The learned Magistrate, while deciding the proceeding under Sec.145, framed a question as to which of the parties was in possession of the subject of dispute on the 28th June, 1965, or within two months prior to that, meaning thereby the date of the initiation of the proceeding under Sec.144. The final order passed by the Magistrate was, therefore, quashed, holding that the crucial date of possession of the parties could not be the date of the order under Sec.144. In connection with the right of the Magistrate to convert a proceeding under Sec.144 into one under Sec.145, it was observed : "......... such conversion, if it is not an independent preliminary order, must take place on or before the very last day when the prohibitory order under Sec.144, Cri. P.C. is due to expire." This observation obviously refers to an order of conversion which simply says that the proceedings under Sec.144 is converted into one under Sec.145, and not to such orders which, while purporting to convert the proceeding under Sec.144 into one under Sec.145, conform to the requirements of Sec.145(1) of the Code. Such orders, in the eye of law, are really independent orders under Sec.145(1). 9. Learned Counsel for the petitioners has also referred to the case of Mahesh Dhanuk V/s. Sakal Mahto, 1973 BBCJ 109 where an order converting a proceeding under Sec.144 into one under Sec.145, after the expiry of the period of two months, was set aside by a learned Single Judge of this Court. From the said Judgment it appears that the learned Magistrate had purported to convert the proceeding under Sec.144 into one under Sec.145 after the expiry of the statutory period of two months. From the judgement it does not appear that the requirements of Sub-Section (1) of S.145 had been fulfilled while converting the proceeding under S.144 into one under Sec.145. In that view of the matter, that case is not of much help to the petitioners, on the facts and in the circumstances of the instant case. 10. Learned counsel has. also referred to Single Judge decisions of this Court in Satya Narain Singh V/s. Jangi Singh, (Cri. Revn. In that view of the matter, that case is not of much help to the petitioners, on the facts and in the circumstances of the instant case. 10. Learned counsel has. also referred to Single Judge decisions of this Court in Satya Narain Singh V/s. Jangi Singh, (Cri. Revn. No. 1624 of 1970, decided on 13-8-1973 (Pat); Jagernath Sah V/s. Ram Bilas Sah, Cri. Revn. No. 212 of 1972, decided on 26-7-1973 (Pat); Sahdeo Rai V/s. Raghunandan Rai, (Cri. Revn. No. 810 of 1970), decided on 16-9-1971 (Pat)); Ram Nagina Singh V/s. Bujhawan Singh, (Cri. Revn. No. 1892 of 1972, decided on 30-10-1972); Karunaranjan Das V/s. Satish Chandra Ghosh, (Cri. Revn. No. 875 of 1969, decided on 6-1-1970 (Pat)) and Mahanth Gopal Das V/s. Ram Bilas Yadav, (Cri. Revn. No. 2998 of 1970, decided on 1-8-1973 (Pat)). In all these cases the orders converting the proceedings under Sec.144 into proceedings under Sec.145, after the expiry of the period of two months, were held to be bad and were set aside. Except in Criminal Revision No. 875 of 1969 the orders converting the proceedings under Sec.144 into proceedings under Sec.145 are not on the records of these cases. From the Judgements it appears that most likely the orders did not conform to the requirements of Sub-Section (1) of S.145. In Criminal Revision No. 875 of 1969 (Pat), this aspect of the matter has not at all been considered. 11. Now, the question is as to whether the order, dated the 28th March, 1972, passed in the instant case, is a valid order in accordance with the provisions of Sec.145 of the Code. Learned Counsel for the petitioners has submitted that there was no fresh material before the learned Magistrate on the basis of which he could have been satisfied that there was an apprehension of a breach of the peace relating to the lands in question and he has simply referred to the materials which were on the record of the proceeding under Sec.144 and which, after the lapse of the statutory period of two months, became non est and could not form the basis of the satisfaction of the learned Magistrate regarding the existence of an apprehension of a breach of the peace. 12. Sec.145 of the Code does not prescribe any particular mode of satisfaction of the Magistrate. 12. Sec.145 of the Code does not prescribe any particular mode of satisfaction of the Magistrate. If he is satisfied, from whichever source it may be, that there is an apprehension of a breach of the peace in relation to possession over land, he gets jurisdiction to initiate a proceeding under Sec.145. This satisfaction may be based on a police report or on any other information. Sub-Section (1) of S.145 itself says - "145. (1) Whenever a District Magistrate, Sub-Divisional Magistrate ......... is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land....." The Magistrate, who has heard the parties in the proceeding under Sec.144, perused their show cause petitions and looked into the police report and other documents, can legitimately be satisfied on those materials that there is an apprehension of a breach of the peace relating to possession over land. I am unable to appreciate as to how if, on those very materials, the learned Magistrate, who could have passed an order initiating a proceeding under Sec.145 within two months from the date of the initiation of the proceeding under Sec.144, could not do so only on the next day of the expiry of the period of the said two months. The matter may be different if sufficiently long period has intervened between the date of the expiry of the proceeding under Sec.144 and the date of the initiation of the proceeding under Sec.145. 13. During the course of arguments it was also submitted that the learned Magistrate should have called for a fresh police report and should not have acted merely on the records of the proceeding under Sec.144, which was dead on the date when the impugned order was passed. In my opinion, in view of Sub-Section (6) of S.144, any order passed under Sec.144 does not remain in force for more than two months from the making thereof. But, it does not mean that the Magistrate cannot base his satisfaction regarding the existence of an apprehension of a breach of the peace on the records of the case, and the arguments advanced on behalf of the parties. 14. But, it does not mean that the Magistrate cannot base his satisfaction regarding the existence of an apprehension of a breach of the peace on the records of the case, and the arguments advanced on behalf of the parties. 14. In R.H. Bhutani V/s. Miss Mani J. Desai, AIR 1968 SC 1444 : (1969 Cri LJ 13), the proceeding had been initiated on the basis of an application filed by one of the parties to the proceeding. No Police-report had been called for by the Magistrate. A grievance was made before the Supreme Court on the basis of some decisions of different High Courts that the Magistrate should not have drawn up the proceeding under Sec.145 without getting the matter verified by the police. In this connection it was observed as follows :- "The proposition that the Magistrate, before proceeding under Sec.145(1), must, as rule, call for a police report where he is moved by a private party or that the absence of a police-report is a sure indication of the absence of possibility of breach of peace is not warranted by the clear language of the section which permits the Magistrate to initiate proceeding either on the police report or on other information. The words other information are wide enough to include an application by private party. The jurisdiction under Sec.145 being no doubt of an emergency nature, the Magistrate must act with caution but that does not mean that where on an application by one of the parties to the dispute he is satisfied that the requirements of the section are existent, he cannot initiate proceedings without a police report." As I have already pointed out, the learned Magistrate, in the impugned order, has set out the respective claims of the parties and has mentioned that he had looked into the show cause filed by both the parties in the proceeding under Sec.144, he had heard the parties regarding their claim of possession oven the lands in dispute and he had also perused the police-report and, on the basis of all those materials, he was satisfied that there was an apprehension of a breach of the peace concerning the lands in question, and, as such, it was necessary to convert the proceeding under Sec.144 into one under Sec.145 of the Code. This order, in my opinion, is in conformity, with Sub-Section (1) of S.145. This order, in my opinion, is in conformity, with Sub-Section (1) of S.145. In exercise of its revisional powers, this Court cannot weigh the sufficiency of the materials which satisfied the Magistrate. As was pointed out in the case of R.H. Bhutani, AIR 1968 SC 1444 : (1969 Cri LJ 13) : "9. The satisfaction under Sub-Section (1) is of the Magistrate. The question whether, on the materials before him, he should initiate proceedings or not is, therefore, 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." 15. In my opinion, the order under revision is consistent with the requirements of Sub-Section (1) of Sec. 145 of the Code and it does not require any interference in exercise of the powers of this Court under Sections 435 and 439 of the Code. 16. The application in revision is, accordingly, dismissed. S.ALI AHMAD, J. 17 I agree.