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1999 DIGILAW 667 (CAL)

Shyam Sundar Agarwalla v. Arun Kumar Agarwalla

1999-12-22

MALAY KUMAR BASU

body1999
JUDGMENT This is a revisional application under Section 482 of the Code of Criminal Procedure preferred against the order dated 29th October, 1998 passed by the learned Sub-Divisional Executive Magistrate, Asansol in Misc. Case No. 207 of 1998 under Section 145 of the Code of Criminal Procedure and against Order No.8 dated 13th July, 1999 passed by Shri P.K. Sarkar, learned Additional Sessions Judge, Asansol in Criminal Motion No.2 of 1999. The relevant facts leading to the present application may be summarised as follows :- On 29th October, 1998, the opposite party No.1 filed an application under Sections 144/107/145 of the Code of Criminal Procedure before the Court of the Sub-Divisional Executive Magistrate, Asansol alleging, inter alia, that he along with the petitioner Nos. 1,2 and 3, namely, Shyam Sundar; Dilip Kumar and Dinesh Kumar Agarwalla were running a Motor Vehicles keeping garage at the disputed premises being R.S. Plot Nos. 271 and 416 under R.S. Khatian No. 399 in Mouza Barakar, Police Station-Kulti, District---Burdwan since the month of January 1990 and the learned Munsif, Asansol in T. S. No.2 of 1998 declared the said property as one belonging to Hindu Joint Mitakshara family. In that petition, it was further stated by the opposite party No.1 that the petitioner Nos.1, 2 and 3 with the help of the other petitioners who were his employees were trying to evict him and the other owners from the said garage and they being dangerous people there was apprehension of breach of peace and hence he made the prayer for an order restraining them from dispossessing him and also for appointment of Receiver under Sections 144, 145 and 107 of the Code of Criminal Procedure. On the basis of such allegations, the learned Executive Magistrate on that very date, that is; 29th October, 1990 drew up a proceeding under Section 145 of the Code of Criminal Procedure directing these petitioners to appear before him and filed their written statement. Being aggrieved by this order, they filed a Criminal Motion in the Court of the learned Sessions Judge, Burdwan and the learned Additional Sessions Judge, Asansol ultimately heard and disposed of that Motion. The 'Motion was dismissed by the learned Judge and both the parties were directed to appear before the learned Magistrate to submit their written statement in support of their respective claims over the disputed garage. The 'Motion was dismissed by the learned Judge and both the parties were directed to appear before the learned Magistrate to submit their written statement in support of their respective claims over the disputed garage. Being aggrieved by that order again, they have preferred the present revisional application. The ground on which the learned Additional Sessions Judge dismissed the Criminal Motion was. that by the impugned order, the rights or liabiliiles of the parties had not been affected in any way since by that order, the learned Magistrate only directed them to appear before him and to submit their written statements in support of their respective claims and no prejudice was caused thereby to their interests and hence, the learned Judge did not consider the Criminal Motion to be maintainable at all. 2. The learned Advocate appearing on behalf of the petitioners Shyam Sundar Agarwalla and others contends that the learned Magistrate started a proceeding under Section 145 of the Code of Criminal Procedure solely relying on the averments made in the petition and the affidavit of the opposite party No.1 and without obtaining any report from any Police Officer or any other responsible Officer about the State of actual possession relating to the land in dispute. Secondly, the learned Magistrate failed to consider the fact that the Title Suit being No. 36 of 1997 was pending in the Court of the learned Second Munsif, Asansol wherein a petition for appointment of Receiver was also pending for disposal and thirdly, that Trade Licence issued by the concerned Kulti Municipality, Electricity Bills issued by the West Bengal State Electricity Board and professional tax receipts in respect of the disputed garage show that the opposite party No.1 was not at all a partner in respect of the said garage and the petition filed by him before the learned Magistrate was false and a harassing one. The next contention advanced by the learned Advocate for the petitioner is that the parties being co-owners of the disputed property and having in joint possession thereof, proceeding under Section 145 of the Code of Criminal Procedure cannot be attracted to such a case and both the Courts below ignoring this position of law fell in to error. 3. The impugned order is an order passed under Section 145(1) of the Code of Criminal procedure. 3. The impugned order is an order passed under Section 145(1) of the Code of Criminal procedure. By this order, the learned Magistrate has only initiated a proceeding under this section and directed the parties to appear before him and filed written statement, if any, regarding their respective claims. The pre-conditions to be fulfilled before such an order can be passed under Section 145 of the Code of Criminal Procedure are firstly, that there must be a dispute relating to some land, etc., secondly, that the Magistrate must be satisfied from a police report or other information that the dispute is likely to cause a breach of the peace and thirdly, the land must be situated within his jurisdiction. 4. As regards the first and last conditions it appears that there is no difference of opinion between the parties and that there is a dispute relating to the land in question and it falls within the jurisdiction of the concerned Executive Magistrate are undisputed. So, it is to be ascertained whether the second condition has been fulfilled in this case, that is to say, whether the learned Magistrate had acquired the 'satisfaction' as envisaged therein before starting the proceeding. The settled position is that there is no hard and first rule as to the sufficiency of materials for having this satisfaction or as to the manner in which this, satisfaction i8 to be arrived at by the Magistrate. He may be satisfied from a report of police or any other Officer or any information including even the statements of the parties. But by whatever process he may have reached his satisfaction he has to give the grounds of his satisfaction in his order. In other words, his order must be a speaking one and from the order itself one must get clear idea about what prompted him to draw up a proceeding under Section 145 of the Code of Criminal Procedure regarding the disputed property. In the present case, going to the impugned order, it is found that the learned Magistrate proceeded on the basis of the affidavit filed by the petitioner alone and did not care to obtain any report from any independent Officer as to the real state of affairs. In the present case, going to the impugned order, it is found that the learned Magistrate proceeded on the basis of the affidavit filed by the petitioner alone and did not care to obtain any report from any independent Officer as to the real state of affairs. Under the law that is not impermissible, but his order should be a reasoned order and in that respect it is found that he has not assigned the ground of his satisfaction in any convincing manner. He has only stated, "Heard, considered. Seen the affidavit filed by petitioner. It appears to me that instant dispute relates to entitlement of possession over the scheduled property. Satisfied that there is reasonable probability of breach of peace. Hence, I draw up proceeding under Section 145 Cr. P. C. against both parties directing them to appear before me personally or by Pleader to give in written statements in respect of claims of possession over the schedule property". 5. It is clear from this that the mandatory provisions underlying the section to the effect that he shall make an order in writing stating the grounds of his being so satisfied have not been complied with. 6. Firstly, it is the case of the applicants that there are several litigations between the parties over the disputed properties pending at the time when the impugned order was being passed, and moreover, the parties are joint owner of the disputed property. Regarding the question of joint possession of parties in respect of any disputed property, the legal principle is that it would be too wide to assert that Section 145 cannot have any application in respect of the properties belonging to co-owners and the question has to be answered with reference to the effect of any finding that the properties have been in actual joint possession of the parties in a proceeding. Secondly, where the applicants claim to have exclusive possession, the proceeding under Section 145 cannot be terminated instantly, merely because, the other party pleads joint possession, and that there is likelihood of breach of peace. But, in such a case, by holding an enquiry only the Magistrate arrives at a finding whether the applicant is in exclusive or both the parties are in joint possession. But, in such a case, by holding an enquiry only the Magistrate arrives at a finding whether the applicant is in exclusive or both the parties are in joint possession. If it is found that the petitioner is in exclusive possession, then of course, he is entitled to a declaration from the Executive Magistrate to continue with such possession, but if the effect of finding is joint possession of the parties then no declaration under Section 145 of the Code of Criminal Procedure can be made and the proceedings under Section 145 of the Code of Criminal Procedure has to be dropped. Be that as it may, at this preliminary stage, the Magistrate, before passing an order towards initiating a proceeding has got to be satisfied by getting an appropriate enquiry made by a suitable Officer as to the question of the nature of possession. In the present case as has already been mentioned above, there has been absolutely no enquiry before the initiation of the proceeding. 7. As regards the question of pendency of civil suit at the time when the impugned order has been passed, it is the settled principle that there cannot be any absolute bar against initiation of such a proceeding and everything will depend on the nature of order passed by the Civil Court in respect of the disputed property and the nature of apprehension of breach of peace......... round the disputed property. Be that as it may, as I have already pointed out above, the foundation of the jurisdiction to proceed under Section 145 of the Code of Criminal Procedure is the satisfaction of the Magistrate as to the existence of a dispute and if he initiates a proceeding without being so satisfied or without applying his mind to this requirement his order would be without jurisdiction and liable to be set aside as a nullity vide Khosh Md. v. Nazir reported in 1906 (33) Cal 68 (FB). In the impugned order, as I have shown there has been no iota of reason leading to the learned Magistrate's arriving at satisfaction about the existence of a dispute threatening breach of peace. That being the position, in view of the basic lacuna and non-compliance with the mandatory provisions of law cutting at the root of the proceeding, the impugned orders cannot be sustained. That being the position, in view of the basic lacuna and non-compliance with the mandatory provisions of law cutting at the root of the proceeding, the impugned orders cannot be sustained. In the result, the application under Section 482 of the Code of Criminal Procedure succeeds and be allowed and the impugned orders of both the Courts below be set aside.