1969 P Cr (PLP)

Razzaque Rahman in support of the Ref. Akhtaruddin Ahmud for S. A. Latif‑In opposition party. This Reference by the learned Additional Sessions Judge, Khulna recommends that certain portions of the order under section 145, Cr. P. C. by the learned Magistrate should be set aside.

2. Originally the petitioners filed an application to the Deputy Commissioner, Khulna for deputation of police armed force to maintain peace, law and order so that the petitioners might safely reap away their paddy from the disputed land. Mr. Wadud, Magistrate, Ist Class, passed an order on 1‑9‑62 attaching the cultivable portion of the disputed land to stop serious breach of peace between the parties over possession of the same "till the dispute is settled by the parties or by the decision of a Civil Court".

3. In this case it is necessary to consider whether the learned Magistrate passed a legal order. Mr. Razzaque Rahman, Advocate appearing in support of the reference submits that the order dated 1‑9‑62 was bad in law, inasmuch as, satisfaction of the Magistrate that apprehension of breach of the peace exists concerning land alone confers jurisdiction on him to draw up a proceeding under the aforesaid section, but in the present case the learned Magistrate did not record his satisfaction. I have gone through the lengthy order passed by the Magistrate giving his reasons for coming to the conclusion that there was apprehension of imminent breach of the peace. He stated that the report of the officer in‑charge Rampal, P. S. was quite alarm ing and it appeared from the said report that both parties were aggressive and serious breach of peace was apprehended at any time over the possession of the disputed land. It is in such circumstances, that tie was constrained to attach the disputed land, specially cultivable portions of the same to stop the serious breach of the peace between the parties. It is true that satisfac tion of the Magistrate as to existence of breach of peace concerning possession of land within his jurisdiction confer upon him the jurisdiction to make an order under section 145, Cr. P. C. That satisfaction need not be stated in express word. If it can be gathered from the grounds discussed by the Magistrate in his order that he was so satisfied this amounts to his satisfaction. In this case the learned Magistrate used the words it appears instead of I am satisfied. Satisfaction is no doubt some thing more than what appears to the Magistrate. Unfortunately, the learned Magistrate did not use the words indicating that he was satisfied from the police report. But this makes no difference when it is manifest from his order that he was actually satisfied from the report of O. C. Rampal, P. S. which was quite alarming, that both parties were aggressive and serious breach of peace was apprehended at any time over the possession of the disputed land. I therefore think that there is no legal defect as such in the initial order to vitiate the said order of the proceeding under section 145, Cr. P. C. which followed.

4. In his final order passed by Mr. S. M. I. Akbari, Sub divisional Magistrate, he specifically and categorically came to the finding that there was absolutely no likelihood of any breach of the peace and he termed it as mere presumption or supposition of 1st party men. An order under section 145, Cr. P. C. declaring a party to be in possession of the subject of dispute can only be made if a dispute likely to cause breach of the peace continues to exists. A very exceptional jurisdiction is conferred on their Magistrate under section 145, Cr. P. C. for the purpose of preserving peace and it is only for that purpose that he may, where a breach of the peace is imminent, attach disputed property.

5. In this connection reference may be made to the cases of Anadl Lal Mikherji v. Suknchand Mandal (58 I L R (Cal.) 388) and Atma Singha v. Harun Singha and others (A I R 1926 Lah. 205) respectively.

6. Subsection (5) of section 145, Cr. P. C. lays down that where it is shown that no dispute likely to cause breach of the peace exists or has existed, the Magistrate shall cancel his order.

7. The moment the Magistrate finds that there was no longer any likelihood of breach of the peace over the possession lie was bereft of the jurisdiction to pass final order declaring a C party to be in possession of the subject of dispute. His clear duty in that case was to cancel the order. On this ground the order of Mr. Akbari dated 16‑8‑65 is bad in law.

8. The letter of reference unfortunately does not sufficiently state the facts of the case and the grounds for setting aside portion of the order. The reference is accepted not on the ground stated by the learned Additional Sessions Judge as indicated above but on the ground that the order dated 16‑8‑65 declaring possession of a party was without jurisdiction and as such illegal. The proceeding is dropped.