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Allahabad High Court · body

1975 DIGILAW 240 (ALL)

Musaddi v. State

1975-04-23

H.N.KAPOOR

body1975
ORDER : H.N. Kapoor, J. This reference has been made by the Sessions Judge by his order dated 24-4-1974 in Cr. Revision No. 123 of 1973 with the recommendation that the final order passed on 11-12-1973 by the Magistrate in proceedings u/s 145 Code of Criminal Procedure be set aside. 2. The dispute was with regard to plot No. 40 measuring 1 acre 11 decimal. The present revisionist moved the court for taking proceedings u/s 145 Code of Criminal Procedure as they alleged that there was an old grave-yard of the Mohammedans on that plot and it was used as grave-yard from time immemorial. The opposite parties claimed this plot to be theirs as their agricultural plot having been purchased from one Budhu. A preliminary order dated 7-7-1970 was passed attaching the plot u/s 145 Code of Criminal Procedure after a report from the station officer was called for. Both the parties then filed their written statements. The Magistrate was not in a position to decide the controversy. He, therefore, made a reference u/s 145 Code of Criminal procedure to the Munsif. The finding of the learned Munsif dated 20-9-1973 was received which was in favour of the opposite parties. Before the final order could be passed by the Magistrate, some of the present revisionists moved an application on 20-11-1973 u/s 145(5) Code of Criminal Procedure to the effect that there was no longer any apprehension of the breach of the peace and as such the proceedings be dropped. This application was supported by affidavits. It was stated that the matter had been decided in a civil suit with respect to the disputed land. It may be stated here that it appears that in the civil suit the applicants had confined their case to a portion of plot No. 40 measuring 45 acre only. The learned Magistrate, however, did not pass any order u/s 145(5) Code of Criminal Procedure but passed the final order on the basis of the finding of the learned Munsif given u/s 145 Code of Criminal Procedure. Applications were also moved before the Magistrate by both the parties to the effect that the case was covered by Section 147 Code of Criminal Procedure and not by Section 145 Code of Criminal Procedure. But he rejected those applications and proceeded u/s 145 Code of Criminal Procedure. 3. Applications were also moved before the Magistrate by both the parties to the effect that the case was covered by Section 147 Code of Criminal Procedure and not by Section 145 Code of Criminal Procedure. But he rejected those applications and proceeded u/s 145 Code of Criminal Procedure. 3. The learned Sessions Judge has made this reference on two grounds. In his opinion, the matter was covered by Section 147 Code of Criminal Procedure and as such the Magistrate should have proceeded u/s 147 Code of Criminal Procedure and not u/s 145 Code of Criminal Procedure. He has also taken the view that the Magistrate should have given a finding whether apprehension of the breach of the peace still existed or not, when an application to the effect was moved and the further proceedings in the absence of any finding on this point were vitiated. 4. Sri Swaraj Prakash, learned Counsel for the opposite parties has opposed this reference on both the grounds. He has argued that the dispute was, in fact, with regard to actual possession of the land and not with regard to any right of user in the land and as such the proceedings u/s 145 Code of Criminal Procedure were rightly taken. For the purpose of Section 145 Code of Criminal Procedure the question of title is not material. When persons of a community claimed that certain land was used as grave-yard of their community from time immemorial, they obviously claimed possession of the same. There may be cases when certain land remains in possession of one party but is used for certain purpose by the other party, e.g., it is used for Ramlila once a year or is used for Holi bonfire or is used for Tazias. In all such cases the possession will remain with one party and the land can be used by the other party for limited purposes only. Similarly, a passage may be claimed in a portion of certain land. But in the present case from the very nature of the claim of the revisionists it appears that they were claiming possession of land as graveyard of their community. Similarly, a passage may be claimed in a portion of certain land. But in the present case from the very nature of the claim of the revisionists it appears that they were claiming possession of land as graveyard of their community. In the case of Nanak Chand v. State 1963 CriLJ 1386 a learned single Judge of Rajasthan High Court held that the controversy was covered by Section 145 Code of Criminal Procedure when one Oswal community claimed certain piece of land as a private land for going to the houses whereas that land was claimed to be in her possession by one Rajeshwari Devi. In my opinion, it will depend upon the nature of the claim whether only a right of user is claimed or possession is claimed. I am satisfied that in the present case possession as grave yard is claimed and not only a mere right of user, and as such proceedings were rightly taken u/s 145 Code of Criminal Procedure. 5. The next point that arises for decision is whether it was incumbent upon the Magistrate to record a finding on the point whether apprehension of breach of the peace still existed or not when a belated application was moved on 20-11-1973 after the finding had been received from the Munsif u/s 145 Code of Criminal Procedure. Sri Swaraj Prakash, learned Counsel for the opposite parties has vehemently argued that when no such plea was taken in the written statement by either of the parties, it was not necessary for the Magistrate to record any finding about the existence of the breach of the peace when he had already been satisfied at the initial stage while issuing a preliminary order that such an apprehension of the breach of the peace existed. He has referred to both the cases which has been cited in the referring order, namely. Sheonath Singh v. Mannoo Singh Yadav 1969 AWR 817 and Sankatha Singh Vs. Rahmat Ullah and Others, (1973) CriLJ 1091. According to him, in both these cases it was denied in the written statement that there was any apprehension of the breach of the peace. The latest decision on the point is given in the case of Gajraj v. Collector Singh 1975 ALJ 99 (FB). Rahmat Ullah and Others, (1973) CriLJ 1091. According to him, in both these cases it was denied in the written statement that there was any apprehension of the breach of the peace. The latest decision on the point is given in the case of Gajraj v. Collector Singh 1975 ALJ 99 (FB). It has been held in that case that whenever such a plea is raised, it is mandatory on the part of the Magistrate to decide whether any apprehension of the breach of the peace existed or not. They have gone to the extent of laying down that all further proceedings in absence of such a finding will be vitiated in law. The above two decisions have been approved by the Full Bench. It may be stated that even in the case of Sankatha Singh Vs. Rahmat Ullah and Others, it was held that power in the Magistrate to act u/s 146(5) Code of Criminal Procedure is, in no way, curtailed. Further he has proceeded u/s 145 Code of Criminal Procedure, It is, nowhere provided u/s 145(5) Code of Criminal Procedure that such a denial must be made at the stage of filing of the written statement. 6. Learned Counsel for the opposite parties has argued that the words "nothing in this section shall preclude any party so required to attend" should be construed as to indicate that such a plea could be raised only at the stage when parties are required to attend end file written statements. I do not agree with this contention, It may be even at a later stage during the proceedings that the parties may have come to terms or certain circumstances may have taken place that there might be no longer any apprehension of the breach of the peace. In the case of Farzand Ali v. Shaukat Ali 1970 AWR 543, it was held that even after the finding has been received u/s 145 Code of Criminal Procedure parties might come to terms and there might be no longer any apprehension of the breach of the peace and in that case the Magistrate was bound to drop the proceedings. In the case of Farzand Ali v. Shaukat Ali 1970 AWR 543, it was held that even after the finding has been received u/s 145 Code of Criminal Procedure parties might come to terms and there might be no longer any apprehension of the breach of the peace and in that case the Magistrate was bound to drop the proceedings. I do not think that a Magistrate is bound to consider the question whether apprehension of the breach of the peace existed any longer, only, when both the parties moved an application to this effect, but he can consider it even on the basis of an application moved by one of the parties. In fact, he is bound to consider this question and record a definite finding u/s 145(5) Code of Criminal Procedure whenever such an application is made before the final order has been passed. In the present case a very good reason has been given by the applicants that the controversy had been decided by the civil court and as such apprehension of the breach of the peace no longer existed. The learned Magistrate has, therefore, committed a manifest error on the point of law in not considering this application. 7. In the result the reference is partly accepted to this extent that the order of the Magistrate dated 11-12-1973 is set aside. He is directed to proceed with the case in accordance with Section 145 and not Section 147 Code of Criminal Procedure but after recording a clear finding about the existence of the apprehension of the breach of the peace u/s 145(5) Code of Criminal Procedure.