P L D 1964 Supreme Court 137 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is from the judgment and order of a learned Single Judge of the High Court of West Pakistan upholding in revision the cancella tion of a preliminary order passed under section 145 of the Criminal Procedure Code by a First‑Class Magistrate at Chunian, on the 6th of September 1960. The circumstances in which the said order of cancellation came to be made were briefly as follows : One Malik Manzoor Elahi, who held 26 out of 2,600 shares in the Amritsar Sugar Mills and Cotton Ginning Factory Limited, was on partition of the country in 1947 appointed Manager of the Branch Factory at Pattoki belonging to the said company. On the strength of this appointment he migrated to Pakistan from Amritsar and obtained possession of the factory as such Manager on the 17th of October 1947. He had also a power‑of‑attorney to his favour executed by the company on the 12th of August 1947, giving him the necessary powers to manage the said factory. On the setting up of the Rehabilitation Department the Rehabilitation Authorities tried to take possession of the factory as an evacuee concern and this led to protracted litigation between the appellant Malik Manzoor Elahi and the Rehabilitation Department which continued up to December 1956, when the High Court by its order dated the 11th December 1956, finally declared the Pattoki factory to be a non‑evacuee concern. In April 1958, however, the company on receiving information that the appellant had removed valuable machineries from the factory premises and had misappropriated huge sums out of the income of the factory suspended him and directed him to hand over charge of the factory to the respondent No. 1 herein, who was authorised by another power‑of‑attorney executed on the 1st of September 1958, to take over charge of the said factory from the appellant and to run the same. The appellant avoided making over posses sion of the said factory and, as such, he was on the 27th of July, 1959, removed from the service of the company, and again directed to hand over charge of the factory to the said respondent. The appellant still refused to make over charge. This led to the registration of a criminal case against the appellant on the 15th of November 1959, under sections 406/408 and 448/420 of the Pakistan Penal Code. It is said that upon the commencement of these proceedings the appellant voluntarily handed over charge of the factory to the respondents herein but continued to stay in the residential quarters attached to the said factory. Nevertheless, on the 13th of April 1960, he applied to the local Magistrate to initiate proceedings under section 145 of the Criminal Procedure Code against the respondents herein alleging that they had forcibly and wrongfully dispossessed him on the 17th of March 1960, with police help. On this date the Magis trate without passing any formal preliminary order under section 145 of the Criminal Procedure Code directed the issue of notices to the respondents calling upon them to appear before him on the 16th of April 1960. The respondents duly entered appearance and objected to the proceedings on the ground that in the absence of a formal preliminary order under section 145 the Court could not be deemed to have taken cognizance of the case and hence could not summon the respondents. The Magis trate realising his mistake passed of formal preliminary order on the 16th of April 1960, and directed the parties to put in their respective written statements by the 2nd of May 1960. In the meantime, on the 25th of April 1960, the police also requested that this factory be sealed and action taken under section 146 of the Criminal Procedure Code, as there was likeli hood of serious breach of peace taking place. The Magistrate examined seven witnesses produced on behalf of the appellant and upon their testimony on the 5th of May 1960, passed an order attaching the factory, mainly upon the ground that the witnesses so examined had admitted that they would take the law in their own hands at any moment to regain possession of the factory. It may be stated here that before the application by the police for the attachment of the factory the respondent had filed a written statement on the 22nd of April 1960, contending that the facts stated in the application of the appellant neither dis closed the existence of any dispute concerning any land or water or the boundaries thereof nor made out a case of any likelihood of breach of peace between the parties. At the time that the order for attachment was made they also maintained that they would controvert the allegation that there was any likelihood of breach of peace after bringing proper evidence on the record. The proceedings were thereafter resumed on the 20th of August 1960, when the appellant concluded his evidence and the respondents examined 8 witnesses on their behalf. The Court itself also examined one witness. A large number of documents were also put in evidence by both sides. After considering all the evidence adduced in the case and hearing the arguments advanced on behalf of each side, the Magistrate in an elaborate and well‑reasoned judgment came to the conclusion that there was no proper evidence on the record to suggest that any likelihood of breach of peace exists or that either of the parties in the past be haved in a manner suggestive of a likelihood of the breach of peace or that there was any genuine fear in the minds of the disputants. After coming to this conclusion he cancelled the preliminary order and the order of attachment, as they were, according to him, both passed without jurisdiction. It was against this order that the appellant moved the High Court in revision and contended that after the Magistrate had issued not only a preliminary order on the 16th of April 1960, but also an order attaching the properties on the 5th of May 1960, after hearing 7 witnesses, it was necessarily to be presumed that the Court had been satisfied that there was serious apprehension of breach of peace and, as such, the Court had no jurisdiction to cancel the preliminary order thereafter. Its duty, it is argued, was thereafter to proceed in accordance with subsection (6) of section 145 of the Criminal Procedure Code to declare as to which party was entitled to the possession of the factory until evicted there from in due course of law and to forbid all others to disturb such possession until such eviction. A large number of decisions were cited to find support for the contention that the continuance of apprehension of a breach of peace is not essential for the passing of a final order under section 145 of the Criminal Procedure Code. The High Court, as already stated, did not accept this con tention and came to the conclusion that none of the authorities relied upon could take away the jurisdiction that was given to the Magistrate by the statute itself, namely, by subsection (5) of section 145, and that it would not be correct to say that the provisions of this subsection came into play only when there was a subsequent settlement between the disputing parties or if the party initiating the proceedings had agreed to give up his right to possession. Leave was granted in this case to consider only this question, namely as to "whether in proceedings under section 145, Cr. P. C. it is a condition of the exercise of jurisdiction by the Magistrate that there should be continuing danger of a breach of the peace of which the Magistrate should be satisfied." The first six subsections of section 145 of the Criminal Procedure Code are in these terms:‑ "145,‑(1) Whenever a District Magistrate. Sub‑Divisional Magistrate or Magistrate of the first class is satisfied from a police‑report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual posses sion of the subject of dispute. (2) For the purposes of this section the expression `land or water' includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: Provided also, that if the Magistrate considers the case one of the emergency, he may at any time attach this subject of dispute, pending his decision under this section. (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed ; and such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub section (1) shall be final. (6) If the Magistrate decides that one of the parties was or should under the first proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed." It will be seen from the above that under subsection (5) an express provision leas been made to enable a Magistrate to cancel the initial order made by him and stay all further proceedings when he is satisfied that no dispute as contemplated under the said section exists or has existed. This subsection clearly empowers any of the parties concerned in the dispute and even any other person interested to appear before the Magistrate and deny the existence of the dispute, and if the Magistrate upon enquiry is satisfied that no dispute likely to cause a breach of the peace exists or existed concerning any land or water or the boundaries thereof, then the Magistrate has no other alternative but to cancel his earlier preliminary order made under subsection (1) of section 145 of the Criminal Procedure Code and to stay all further proceedings subject to such cancellation. It is unnecessary to refer to all the decisions cited at the Bar, for, they have all been fully discussed in the judgment of the High Court. None of them supports the extreme contention advanced on behalf of the appellant. The only new case cited before us is the case of Ganga Singh v. Raj Bahadur Singh and others (A I R 1958 All. 803). This decision also does not go to the extent of saying that where a preliminary order under section 145 of the Criminal Procedure Code has been made with jurisdiction the Magistrate has thereafter no power at all to cancel it. It was very clearly laid down in this case that subsection (5) of section 145 of the Criminal Procedure Code did confer such a jurisdiction upon the Magistrate and it was said that "if such a dispute existed then but subsequently it has ceased to involve a breach of the peace, or if it has ceased to exist at all, it is a case of such a dispute ceasing to exist. In either circumstance the Magistrate has the power, coupled with duty, to cancel the preliminary order. In other words when it is proved to the satisfaction of the Magistrate that the dispute has ceased to be likely to cause a breach of the peace, he is obliged to drop the proceedings." Indeed, there can be no such decision, for, the statute in clear terms authorises such a cancellation, and there can be no justification for restricting the power of cancellation ‑to only cases where the parties have compromised their dispute or the person initiating the proceedings has given up his claim to possession. The subsection imposes no such restriction. We see no reason, therefore, to import any such restriction into the terms of the said subsection. The language of the subsection is clear and it leaves no room for doubt that where any party to the dispute or any other person interested has appeared and denied that any such dispute exists or ever existed, then he is entitled to lead evidence to establish his contention, and if upon such evidence the Magistrate comes to the conclusion that he has succeeded in showing that no such dispute exists or existed, then the Magistrate is not only entitled but is also bound to cancel the preliminary order. It has to be remembered that the preliminary order is not made after any exhaustive inquiry but is in most cases an ex parts order based either on the report of the police or upon the allega tions contained in the application for initiation of proceedings. It is, therefore, only an order of a tentative nature which may well be varied and revised if the correctness of the facts on the basis of which it is issued is challenged and established by the party so alleging to be untrue This is what subsection (5) of section 145 of the Criminal Procedure Code clearly contemplates. It would be most unreasonable to impute to the Legislature the intention of attaching any sanctity to an order of such a tenta tive nature. In the present case the respondents in their written statement filed on the 22nd of April 1960, clearly denied that any dispute with regard to any land or water or the boundaries thereof existed or that there was any apprehension of breach of peace and the Magistrate after taking evidence came to the conclusion that there was no evidence to indicate that any such apprehension of breach of peace ever existed and in the circumstances he acted rightly in cancelling the order passed by him on the 16th of April 1960. It further seems to us that the provisions of section 145 read as a whole clearly indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word `exists' in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided by this section is no longer called for and should be put an end to. For the reasons given above we are of the opinion that the High Court rightly refused to interfere with the order of cancella tion made by the Magistrate concerned. This appeal is accord ingly, dismissed. A. H. Appeal dismissed.