1970 P Cr (PLP)

The question that arises for consideration is whether a Magis trate is bound to hold an enquiry as contemplated under sub section (4) of section 145 of the Code before he cancels the prelimi nary order passed under subsection (l) of the section in exercise of the power conferred under subsection (5) thereof. Sub sections (4) and (5) of section 145 are in the following terms: ‑ "(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 emergency, he may at any time attach the 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 in 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 subsection (l) shall be final." Subsection (4) of section 145 enjoins upon the Magistrate the duty of holding an enquiry in order to decide as to which party was in possession of the land in question, for the purpose of recording the final order under subsection (6) thereof. Sub section (5) of the section, on the other hand, empowers the Magis trate to cancel the preliminary order as soon as he is satisfied that the basis upon which the preliminary order was passed viz. "a dispute likely to cause a breach of the peace" has ceased to exist or was not there. The exercise of power under this subsection is not dependent upon the result of enquiry under subsection (4) and this is evident from the expression "Nothing in this section shall preclude any party . . . . . . . from showing that no such dispute as aforesaid exists or has existed" occurring in subsection (5). The jurisdiction to hold an enquiry under subsection (4) on the question of possession is absolutely dependent upon the existence of a dispute likely to cause a breach of the peace and as soon as no such dispute is shown or have existed the jurisdiction of the Magistrate to proceed with the enquiry will also cease. Subsection (5) does not require the Magistr4te to 4bld an enquiry as contemplated under subsection (4) in order to be satisfied "that no such dispute as aforesaid exists or has existed." He is not dependent even upon the parties to the dispute for his satisfaction in this behalf. He is competent to cancel the preliminary order passed under sub section (1) of section 145 if he becomes satisfied, whatever the source of his information may be, that the state of things does not exist which alone would give him jurisdiction to proceed with the enquiry (underlining' is mine). Reference may in this connexion be made to the decision of a Division Bench of the Calcutta High Court in the case of Manindra Chandra Nandi v. Berada Kanta Roy Chowdhury and others (1). The point at issue may be considered from another angle. The contention of Mr. Rafiqul Islam that a Magistrate is not competent to pass an order of cancellation under subsection (5) of section 145 without holding enquiry in accordance with sub section (4) thereof implies that when a party to the dispute or any other person interested has shown that no such dispute exists or has existed still the Magistrate cannot cancel the preliminary order without giving the other party to the dispute an opportunity to show, by adducing evidence if it so likes, that the dispute exists or has existed. It does not appear how such an implication can be put into subsection (5). The contention that a Magistrate is , not entitled to drop the proceedings without giving an opportu nity to a party to show by evidence that there was a likelihood of a breach of the peace was specifically raised and repelled in the case of Denapadi Narasyya and another v. Chingulari Yen Kiah and others (2). The decision in this case was followed by this Court in the case of Sheikh Shahmat All and others v. Sahar. Ali (3) and it was held that if the Magistrate is satisfied that there was no likelihood of a breach of the peace, he is not bound to give the parties an opportunity to establish the contrary. In this case the Magistrate had dropped the proceeding when some persons, who were not parties to the dispute., filed a petition before the Magistrate claiming the possession in the disputed land and denying the allegation of apprehension of breach of the peace. The order of the Magistrate was considered to be justified. I fully agree with the views expressed in the aforesaid cases. There can accordingly be no doubt that a Magistrate is not bound to hold an enquiry in accordance with the provision of subsection (4) oil section 145 in order to exercise powers under subsection(5) thereof. Reference may also be made to the decision of our Supreme Court in the case of Malik Manzoor Elahi v. Laid Bishambar Das and another (4) upon which reliance was placed by both the sides. Our Supreme Court, according to Mr. Promode Chandra Bose, has clearly laid down therein that when the Magistrate is satisfied that no such dispute as is likely to cause a breach of the peace exists or existed he "is not only entitled but is also bound to cancel the preliminary order." He has further contended that there is nothing in the said judgment to warrant the view sought to be pressed that the Magistrate is required to enter into an enquiry in accordance with subsection (4) and take oral evidence (1) 6 C W N 417 (2) 1 L R 49 Mad. 232 (3) P L D 1960 Dacca 170 (4) P L D 1964 S C 137 of the parties in order to cancel the preliminary order. Mr. Rafiqul Islam, on the other hand, tried to support his argument by reference to the following passages in the said judgment. In para.12, it was stated: ‑ " . . . . . 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." Again in para. 15 it was stated: ‑ "Where any party to the dispute or any other person interest ed has appeared and denied that any such dispute exists or ever existed, then he is entitled to lead evidence to establish his contention. There is nothing in the aforesaid passages or any where else in the judgment from which it can be construed that our Supreme Court laid stress upon enquiry as contemplated under subsection (4) of section 145 of the Code as condition precedent to the exercise of jurisdiction to cancel the preliminary order, in accordance with the provision of subsection (5) thereof, nor do I find anything therein from which it can be inferred that when a Magistrate is satisfied after a party or any other person interested has shown that no such dispute exists or existed, he is still required to proceed with an enquiry, if the other party so desires, and allow such party an opportunity to satisfy him that such dispute exists or existed. In fact, the following passage occurring in para. 18 of the said judgment fortifies the views which I have expressed earlier "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 mani festly the invocation of the summary procedure provided in this section is no longer called for and should be put an end to. It was contended on behalf of the petitioners that there was no materials before the learned Magistrate on 20‑8‑68 to come to a finding that there was no longer apprehension of breach of the peace and consequently he had no jurisdiction to pass the impugned order. In this connection reference was made to a decision of this Court in the case of Moslem Ali Fakir and others v. Ainud din Talukdar and others (1) and also to an unreported decision of Abdul Hakim, J. in the case of Hayatunnessa v. Faziluddin Patwary and others in Criminal Reference No. 30 of 1968. In both the cases referred to above the proceedings under section 145, Cr. P. C. were dropped merely on account of the absence of the parties. In the case of Moslim Ali Fakir although in the impugned order it was mentioned that there was no apprehension of breach of the peace, it was held that the finding was absolutely unrelated to the facts on record and the learned Magistrate had not applied his mind to the existence or otherwise of the appre hension of breach of the peace. In the case of Hayatunnessa there was even no mention in the impugned order that there was no apprehension of breach of the peace. On the basis of the facts in those cases, the orders dropping the proceedings under section 145, Cr. P. C. were held to be bad in law. The facts of the present case are, however, different. In the instant case the learned Magistrate had looked into some papers filed by second party arid also seen the order of the A. D. C. dated 4‑10‑67 and on the basis thereof was satisfied that there was no longer any apprehension of breach of the peace. It, therefore, cannot be said that the learned Magistrate had no material before him to come to the finding which he did and had not applied his mind to the question whether the apprehension relating to breach of the peace had ceased to exist. Lastly, it was contended by Mr. Rafiqul Islam that the papers filed before the learned Magistrate were not such as could lead him to a finding that ‑ there was no apprehension of breach of the peace. The papers on record show that Azahar Ali Rari who initiated the proceeding under section 145, Cr. P. C. filed a petition on 9‑8‑66 along with others before the Additional Deputy Commissioner (Revenue) of Barisal praying for putting them in possession of the land in question from which they had been "dispossessed by the Government illegally" by the second‑party opposite‑parties. On 4‑10‑67 the Additional Deputy Commis sioner of Bakarganj disposed of the said petition in the following terms: ‑ "Seen G. Pig opinion. We cannot dispossess the settlement holders. Let the petitioner take usual steps through civil Court for possession." If on a perusal of the aforesaid papers the learned Magistrate felt satisfied that the dispute concerning the land in question was no longer likely to cause breach of the peace it cannot be said that his finding was unwarranted. In the circumstances I see no ground for interference with the order passed by the learned Magistrate. The Rule is accordingly discharged. . Rule discharged.