Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 441 (ALL)

Krishna Kumar Navman v. State Of U. P.

2001-05-07

BHAGWAN DIN

body2001
JUDGMENT : - Bhagwan Din 1. BY means of this application under Section 482, Cr. P.C., applicant Krishna Kumar Navman prays for quashing the proceedings under Section 145, Cr. P.C., initiated on the basis of police report and also a final order passed on 6th August, 1984. The applicant has further prayed for quashing the order dated March 31, 1986 passed in Criminal Revision No. 262 of 1984. 2. THE facts and circumstances giving rise to the present application are that the Additional City Magistrate, Aligarh, on the basis of the police report of police station, Banna Devi made a preliminary order under Section 145 (1), Cr. P.C. requiring Sri Krishna Kumar Navman (present applicant) and Aligarh Muslim University Administration and others (present opposite parties) to appear in the Court and put in their written statements in support of their respective claims for possession over the plot No. 694 measuring 5 bighas 9 biswas, situated within the municipal limits of Aligarh, near Tiraha Gular Road, Aligarh (hereinafter referred to as the land in dispute). Parties appeared in the Court and filed their written statements. The applicant, Krishna Kumar Navman claimed that he had derived the title and possession over the land in dispute through Sri Amar Pratap Singh. In para 11 of the written statement, however, he stated that there is no apprehension of breach of the peace from his side. 3. ON behalf of Aligarh Muslim University, Aligarh, the Registrar filed written statement. He denied the title and possession of the applicant and claimed that the Collector, Aligarh in his capacity as Manager of the court of wards, relating to the land in dispute, granted lease in 1929 in favour of Aligarh Muslim University for a period of ninety years for the purpose of establishing City School. Since then Aligarh Muslim University has been in peaceful possession over the land in dispute till the date, the preliminary order was passed. In this written statement, in paras 12 and 13, it is further stated that there is no apprehension of breach of the peace from the side of the University. 4. PARTIES have also produced oral and documentary evidence in support of their claims for the possession over the land. In this written statement, in paras 12 and 13, it is further stated that there is no apprehension of breach of the peace from the side of the University. 4. PARTIES have also produced oral and documentary evidence in support of their claims for the possession over the land. The Additional City Magistrate, on conclusion of the proceedings, passed final order on August 6, 1984 holding that administration of Aligarh Muslim University has been in possession over the land during the period of two months preceding the date of preliminary order and was also in actual possession over the land in dispute on the date the preliminary order was passed. He, therefore, directed the police concerned to release the land in dispute in favour of Aligarh Muslim University with a direction to Krishna Kumar Navman not to interfere in peaceful possession. Against the above order, applicant Krishna Kumar Navman filed a Criminal Revision No. 262 of 1984 before the Sessions Judge, Aligarh, which was ultimately heard and decided by the VII-Addl. District and Sessions Judge, Aligarh, who dismissed the revision and upheld the order passed by the Magistrate. Against the order passed by the Addl. District and Sessions Judge, the applicant has filed this application. 5. HEARD the learned counsel appearing for the applicant Krishna Kumar Navman and also learned counsel appearing for opposite party, Aligarh Muslim University (Administration). 6. LEARNED counsel appearing for the applicant contended that parties in their written statements have in many words stated that there existed no breach of peace from their sides. The learned Magistrate either before making final order or even in his final order has not considered the contention of the parties that there existed no breach of peace regarding the possession over the land in dispute. Therefore, the order passed by the learned Magistrate on 6.8.1984 is not sustainable. It is further contended that the Revisional Court has also not examined this aspect of the matter in its order dated 31st March, 1986. On the other hand, learned counsel appearing for the Administration of Aligarh Muslim University, Aligarh, urged that once the Magistrate has passed the preliminary order under Section 145 (1), Cr. P.C., he is not required to record a finding that breach of peace existed during the pendency of the proceedings or exists on the date of final order. On the other hand, learned counsel appearing for the Administration of Aligarh Muslim University, Aligarh, urged that once the Magistrate has passed the preliminary order under Section 145 (1), Cr. P.C., he is not required to record a finding that breach of peace existed during the pendency of the proceedings or exists on the date of final order. Hence, the order passed by the Magistrate and thereafter by the Revisional Court are absolutely correct and need no interference. 7. OUT of submissions of the respective counsels of the parties, the following controversy emerged : "Whether it is necessary for the Magistrate to record a finding in the final order that there exists or existed a dispute likely to cause breach of peace between the parties." 8. NOT once but times again engaged the attention of this High Court and the Hon'ble Supreme Court on the above controversy, which has been finally resolved by the Full Bench of this Hon'ble High Court by the majority decision in Gajraj and others v. Collector Singh and others, 1975 Cr LJ 1026. The facts in the above case are similar to the facts of the present case. In the case of Gajraj (supra) referred to above, the Magistrate on the basis of the police report passed a preliminary order under Section 145, Cr. P.C. and also made attachment of the disputed plots. Both the parties filed their written statements with affidavits and documents in support of their claims of possession. 9. IN the written statement, the opposite party asserted that there existed no dispute likely to cause breach of the peace. The Magistrate recorded no finding on these questions. He proceeded with the inquiry and passed final order as contemplated under Section 145 (6), Cr. P.C. holding the opposite party Collector Singh was in possession of the disputed land within two months of the date of preliminary order. Against that order, applicant Gajraj Singh and others preferred a revision before the Sessions Judge, Hardoi, challenging the findings recorded by the Magistrate not on merits, but on the ground that he had no jurisdiction to proceed with the inquiry without first recording a finding on the assertion of the Collector Singh that there was no apprehension of the breach of peace. The Sessions Judge dismissed the revision. Against that order, an application under Section 482, Cr. The Sessions Judge dismissed the revision. Against that order, an application under Section 482, Cr. P.C. was filed before the High Court challenging the legality of the order of the Magistrate on three grounds : Firstly, the Magistrate did not have the territorial jurisdiction to entertain the present proceeding ; Secondly, that the Magistrate did not consider the evidence adduced by the applicant and, therefore, the finding on merits could not be sustained and ; thirdly, the Magistrate acted without jurisdiction in relying on the affidavits not verified by him ; but verified by the Magistrate. The learned single Judge permitted the applicants to raise for the first time before the High Court, a new plea that because the Magistrate had not recorded any finding on the plea of the opposite party that there existed no dispute likely to cause breach of the peace, he had no jurisdiction to further proceed with the inquiry and to pass final order under Section 145 (6), Cr. P.C. Since, the plea was based apparently upon the Division Bench decision of this Court in AIR 1958 All 803 , 1973 Cr LJ 1091 (All) and 1969 All WR (HC) 817. The learned single Judge did not agree with the view expressed in 1973 AWR (HC) 655, therefore, referred the controversy to the Full Bench which came up for hearing before Hon'ble the Chief Justice D. S. Mathur, Hon'ble Mr. Justice K. B. Srivastava and Hon'ble Mr. Justice Onkar Singh. The Hon'ble Chief Justice was of the view that where the Magistrate does not record a finding on the plea raised by any party that there did not exist or never existed a dispute likely to cause a breach of the peace and instead proceeds with the inquiry on the basis of final order under Section 145 (6), Cr. P.C., there is no defect in the competence of the Magistrate to pass such an order, the defect is merely in the exercise of jurisdiction with the result that the proceedings shall not be vitiated unless the omission has occasioned a failure of justice, that is, on the basis of the material on record, it cannot be said that no dispute likely to cause the breach of the peace existed or if it existed has ceased to exist. The defect in the exercise of jurisdiction would be curable under Section 537 of the Code. The defect in the exercise of jurisdiction would be curable under Section 537 of the Code. To the contrary, the majority of Judges comprised of Hon'ble Mr. Justice K. B. Srivastava and Hon'ble Mr. Justice Onkar Singh discussing the theme of decision of this Court and that of Hon'ble Supreme Court and following observations made by Full Bench of this Court in AIR 1958 All 803 , 1973 Cr LJ 1091 All and 1969 AWR (HC) 817, held that the jurisdiction of a Magistrate to initiate proceedings under sub-section (1) of Section 145 arises, when he is satisfied from a police report or other information that : (i) there is a dispute concerning any land or water or the boundaries thereof and (ii) such a dispute is likely to cause a breach of the peace. 10. Hon'ble Mr. Justice K. B. Srivastava further held that it is manifest from what I have stated that a preliminary order can be passed only on the simultaneous existence of two facts, namely, the existence of a dispute concerning land, etc., and the magnitude and potentiality of that dispute being such that head and limbs are likely to be broken, unless the Magistrate steps in to avert it. His satisfaction that these two facts exist is the condition precedent for the passing of the preliminary order. It has been further observed by his Lordship that the question which arises is whether this satisfaction is final till a proceeding lasts or it can be dislodged at a subsequent stage during the pendency of that proceeding. I am of the view that it is final, unless it is challenged under sub-section (5) and revoked. Once the Magistrate is satisfied at the time of the preliminary order that there is an apprehension that the peace will be broken, it is unnecessary that he should record a finding to that effect again when passing the final order. I am of the view that it is final, unless it is challenged under sub-section (5) and revoked. Once the Magistrate is satisfied at the time of the preliminary order that there is an apprehension that the peace will be broken, it is unnecessary that he should record a finding to that effect again when passing the final order. See Ganga Ram v. Murd Shah, (1923) 24 Cri LJ 613 (Lah) ; Kamal Kutty v. Vdayvarma Raja, (1912) 13 Cr LJ 753 : (1912) ILR 35 Mad 275 ; Jiba v. Chandu Lal Ambalal, AIR 1926 Bom 91 : (1926) 27 Cr LJ 661 ; Gurditta v. Taja, AIR 1939 Lah 108 : (1939) 40 Cr LJ 519 ; Hari Ram v. Banwari Lal, AIR 1967 Punj 378 : (1967) Cr LJ 1051 and Amritlal N. Shah v. Nageswara Rao, AIR 1947 Mad 133 : 48 Cr LJ 435. The view expressed by Hon'ble Mr. Justice K. B. Srivastava was concerned by Hon'ble Mr. Justice Onkar Singh. 11. IN the instant case, learned Magistrate on the police report of police station concerned passed the preliminary order under Section 145 (1), Cr. P.C. which is translated in English as follows : "It has been informed by the police report dated 25.8.1982 that a dispute between the parties has arisen in respect with a land situated between Numais Road and Goolar Road surrounded by wires and closed with a gate, likely to cause breach of the peace between the parties, required the parties to appear in the Court on 28.8.1982 at 10 a.m. and put in their claim in respect with the possession over the land". 12. THE Magistrate in the preliminary order reduced the substance of information received from the police station concerned, he did not record in the order that he is satisfied that the dispute concerning the land is likely to cause the breach of peace. The Magistrate assumes the jurisdiction of proceeding under Section 145, Cr. P.C. only if there is a material before him to satisfy him, that there exists dispute concerning the land, likely to cause breach of peace. Without recording such satisfaction in the preliminary order passed under Section 145 (1), Cr. P.C., the Magistrate has no territorial jurisdiction to initiate proceeding under Section 145, Cr. P.C. only if there is a material before him to satisfy him, that there exists dispute concerning the land, likely to cause breach of peace. Without recording such satisfaction in the preliminary order passed under Section 145 (1), Cr. P.C., the Magistrate has no territorial jurisdiction to initiate proceeding under Section 145, Cr. P.C. In the event, the Magistrate assumes the jurisdiction and draws the proceeding after making preliminary order under Section 145, Cr. P.C. and the parties in response to the notice appear and challenge the preliminary order proceedings, the Magistrate is required to make an order under sub-section (5) of Section 145 of the Code. As has been laid down by the Division Bench in Gajraj's case (supra) that at the time at which a Magistrate assumes jurisdiction under sub-section (1), he has either information laid before him by the petitioner in the proceedings by means of an application, with or without supporting affidavit, or there is a police report pointing to a likelihood of a breach of the peace on account of a dispute concerning land, etc., or there is some other information may be, personal information of the Magistrate, on the basis of which he forms his opinion and assumes jurisdiction. Any of these three sources of information may be unfounded, in fact. His satisfaction at that stage is ex parte, either in the absence of both the contesting parties, in the case of a satisfaction founded on a police report or on his own information, or it is ex parte, at least as against the rival party. In case the satisfaction has been arrived at on the motion of the petitioner, his satisfaction at this initial stage is, therefore, tentative. 13. THE Magistrate in the case in hand has since not recorded his satisfaction in the preliminary order made under Section 145 (1), Cr. P.C., therefore, he has wrongly assumed jurisdiction to proceed and also committed error in not recording a finding on the challenge made by the parties that there exists no breach of peace in respect with the dispute of the possession over the land in dispute, likely to cause breach of the peace and the Magistrate has further committed error in not recording a similar finding in the final order as well. 14. 14. THE learned counsel appearing for the opposite party No. 2, Aligarh Muslim University contended that the proceeding under Section 145, Cr. P.C. may not be quashed because if the Magistrate fails to record a finding that there exists breach of peace in final order, it is an irregularity which can be cured under Section 537 of the Code. THE reliance has been placed on the decision of the Hon'ble Supreme Court in Rajpati v. Bachan and another, AIR 1981 SC 18 , wherein it has been held that a finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Criminal Procedure Code, requiring such a finding in the final order. Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of peace exists, it is not necessary that the breach of peace should continue at every stage of the proceeding unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub-section (5) of Section 145. Unless such a contingency arises, the proceedings have to be carried to their logical end culminating in the final order under sub-section (6) of Section 145 of the Code. In the above case, the Magistrate, admittedly, had recorded his satisfaction that there exists breach of peace and also recorded reasons for his being so satisfied. The parties filed their written statements ; but did not challenge under sub-section (5) of Section 145 of the Cr. P.C. that the preliminary order was wrong for the reasons that there existed no breach of peace. Therefore, Lordships of Hon'ble Supreme Court held that a finding of existence of breach of the peace is not necessary at the time when the final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final order. 15. IN the case in hand, the Magistrate had not recorded satisfaction in the preliminary order passed under Section 145 (1), Cr. P.C., but, he had substantiated the police report only. Not only that, the parties in their written statements, had challenged under sub-section (5) of Section 145 of the Cr. P.C. that there existed no breach of the peace. 15. IN the case in hand, the Magistrate had not recorded satisfaction in the preliminary order passed under Section 145 (1), Cr. P.C., but, he had substantiated the police report only. Not only that, the parties in their written statements, had challenged under sub-section (5) of Section 145 of the Cr. P.C. that there existed no breach of the peace. Therefore, it has become necessary for the Magistrate at that stage to record a finding that the breach of the peace existed or exists, concerning a dispute likely to cause breach of the peace or to record a finding in the final order. The Magistrate has, thus, neither recorded his satisfaction in the preliminary order nor has recorded a finding in the nature in the impugned order, therefore, observations of the Hon'ble Supreme Court in the case of Rajpati (supra) has no bearing on the facts and circumstances of this case. 16. FOR the reasons recorded above and having regard to the decision of the Full Bench of this Court in Gajraj and others (supra), I am of the view that the proceedings under Section 145, Cr. P.C., drawn by the Magistrate, were without jurisdiction and, thus, entire proceedings deserve to be quashed. I am of the further view that the final order passed by the Magistrate is bad in law for the reasons that he has not recorded a finding that there existed or exists breach of the peace. I also do not agree with the decision made by the Revisional Court in Criminal Revision No. 262 of 1984. The application is allowed. The proceedings initiated by the Magistrate under Section 145, Cr. P.C., as well as the order passed by the Revisional Court in Criminal Revision No. 262 of 1984 are quashed.