1984 P Cr (PLP)

(d) Criminal Procedure Code (V of 1898)- -- S. 145(4) (5)-Dispute concerning land likely to cause breach of peace-Inquiry as to possession-Right to possess subject of dispute-Dropping of proceedings by Magistrate when justified Magistrate not applying his mind (. facts of case as desired under S. 145(5), Cr. P. C., and dropping proceedings-Order of dropping proceedings, held, was in complete departure to mandatory provisions of law-Attention of Magistrate's invited to such defects with ' declaration that in future if proceedings were found suffering from such defects High Court shall move for withdrawal of Magisterial powers. The stage after filing written statement, as contemplated under subsection (4) of section 145, Cr. P. C. was to enquire into a right to possess the subject of dispute. The trial Magistrate, instead of holding an inquiry to ascertain a right to possess the subject of dispute fell in error by dropping the proceedings in the manner of rejection of the application under subsection (5) of section 145 empowered the Magistrate to drop the proceedings, provided he was satisfied by record about the non-existence of the dispute, as alleged by the applicant. Once he was satisfied that no dispute, likely to cause the breach of the peace, existed, he was not bound to continue the proceedings. In absence. of the finding in the light of subsection (5) of section 145, Cr. P. C. the Magistrate was not authorised to drop the proceedings without holding inquiry, contemplated under subsection (4). In the present case, Magistrate was not found to have even applied his mind to the facts of the case, as desired under subsection (5) of section 145, Cr. P. C. The order was therefore, in complete departure to the mandatory provisions of law. M. Y. Arvi for Petitioner. Riaz Akhtar for Respondents. Date of institution : 29th January, 1984 The Sessions Judge, Mirpur has made this reference with the re commendation of quashment of order recorded by the Revenue Assistant, Magistrate Ist Class, Mirpur, on 4th of October 1983, whereby an application under section 145, Cr. P. C. addressed by the petitioner was dismissed.

2. Muhammad Ayub, petitioner submitted an application before the trial Magistrate under section 145, Cr. P. C. and prayed for attachment of the subject of dispute, till the decision of the case. It was stated that the disputed place was in possession and ownership of the petitioner and the respondents were forcibly occupying the land to construct a house. The petitioner asked the respondents not to interfere in his possession and refrain from undertaking construction in the disputed land but they were adamant to do so, as such there was apprehension of the breach of peace. The trial Magistrate on making preliminary inquiry, felt satisfied that a dispute likely to cause breach of peace, concerning the land in dispute, did exist, consequently, he recorded the preliminary order and asked the respondents to file their written statement alongwith the evidence, if any, on or before the date of hearing. The Magistrate also considered the case one of emergency and attached by the property, pending the decision. The respondents filed their written statement and prayed for vacation of the attachment order. The written statement was filed on 10th of September 1983. The allegations were denied and it was further alleged that failure of the petitioner to describe the particulars of the subject of dispute rendered the attachment order null and void and further proceed ings were to be dropped. In consequence of the objections raised in the written statement, the trial Magistrate stopped the proceedings and dismissed the application. The order was challenged in revision petition before the Sessions Judge. The learned Sessions Judge recorded his disagreement with the trial Magistrate and recommended quashing of the impugned order by restoring the case on the file of the trial Magistrate for holding inquiry of aright to possess the subject of dispute.

3. Mr. Riaz Akhtar, the learned counsel for the respondents conceded that the impugned order was defective as the trial Magistrate instead of vacating the attachment order, dropped the proceedings by rejecting the application. An execution was, however, taken by pointing out that failure of the petitioner to specify to subject of dispute by giving necessary particulars, rendered the proceedings un-maintainable.

4. The subject of dispute, as reflected from the application, is part of the courtyard of the petitioner. The sketch of the site appended with the application shows that the subject of dispute formed part of the court yards of the parties. It was situate on the southern end of the courtyard of the petitioner and northern end of the courtyard of the respondents. The length and width of the disputed place was not specified. However, the identity of the subject of dispute was clearly ascertainable. It is for this reason that the attachment order was shown executed conveniently without any difficulty. This fact is borne out of the report dated 11th of August 1983. In the report, available at page 11 of the trial Magistrate's file, the subject of dispute was shown as 89 ft. In length and 5.5. ft in width. The identity and description of the subject of dispute was, therefore, unmistakenly clear to the parties. The objection raised by the learned counsel for the respondents is not sustainable, firstly, as pointed out earlier, the necessary description of the land in dispute was shown in the sketch of the site appended with the application. The trial Magistrate who recorded the preliminary order, felt satisfied with the identity an description of the land and thereafter passed the order of attachment. In presence of the execution of the order of attachment, hardly an ambiguity, misapprehension or doubt was left in this regard. Secondly when the subject of dispute was clearly attached and the parties were alive to its identity, there was no stage to challenge the order of attachment for want of identity and description of the land.

5. Section 145, Cr. P. C. authorised the Magistrate of the Ist Class to act under this section, provided he was satisfied from the police report or other information that the dispute likely to cause a breach of the peace, existed, concerning land, or water, or boundaries thereof within the local limits of his jurisdiction. The condition precedent, therefore, was that there was convincing material to lead to an inference that a dispute likely to cause the breach of the peace, concerning the land, the water o boundaries thereof, actually existed and the breach of peace was to take place within the local limits of the jurisdiction of the Magistrate. The knowledge of the Magistrate of identity and description of the subject of dispute was equally necessary so as to eliminate chance of misapprehension and mistake in respect of such subject of dispute. The law required that in order to assume jurisdiction under this section, it was desirable for the Magistrate to be sure about the identity and description of subject of dispute so as to decide the question of possession in just fashion. Bu it was not an absolute rule. Once it was brought to the notice of the Magistrate that a dispute in respect of land or other property, was likely to cause a breach of the peace, within the local limits of his jurisdiction, the Magistrate was empowered to act in that behalf, but at the same time, the Magistrate was authorised to assume jurisdiction to act in that behalf even in absence of detailed description and identity of the subject of dispute, for it was within the competency of the Magistrate to ascertain the identity of the subject-matter by holding an inquiry before passing the preliminary order or by asking police or the applicant to furnished detailed description of subject of dispute, necessary to ascertain it identity. Once the jurisdiction was assumed and cognizance was taken, the Magistrate was not justified to drop the proceedings for want of detailed description of the land in dispute or absence of sufficient materia constituting identity of the subject-matter. In the present case, the descrip tion and identity of the subject-matter was equally established. Even if in view of the learned Magistrate, the detailed description was wanted, it was proper for him to ask the parties to do the needful or on their failure, to hold local inquiry. The Magistrate was not authorised to drop the proceedings for such minor defect.

6. The stage after filing written statement, as contemplated under subsection (4) of section 145, Cr. P. C. was to enquire into aright to possess the subject of dispute. The trial Magistrate, instead of holding an inquiry to ascertain a right to possess the subject of dispute, fell in error by dropping the proceedings in the manner of rejection of the application. It may be stated here that subsection (5) of the section empowered the Magistrate to drop the proceedings, provided he was satisfied by record about the non-existence of the dispute, as alleged by the applicant. Once he was satisfied that no dispute, likely to cause the breach of the peace, existed, he was not bound to continue the proceedings. In absence of the finding in the light of subsection (5) of section 145 Cr. P. C. the Magistrate was not authorised to drop the proceeding without holding inquiry, contemplated under subsection (4). In the present case, Magistrate is not found to have even applied his min

7. It is noticed that the Revenue Magistrates are not conversant with the provisions of sections 145, 133 and 107, Cr. P. C. The preliminary orders are generally found defective which render the whole proceedings null and void. The attention of the Magistrate was invited to the defect pointed out above but no useful purpose has since been served. It is, therefore, declared that in future, if the proceedings arc F found suffering from such defects, this Court shall be constrained to move for withdrawal of the Magisterial powers. A copy of the order shall be sent to all the District Magistrates of Azad Jammu and Kashmir for intimation of their subordinate Courts.

8. In presence of the observations made above. the recommendation made by the learned Sessions Judge is upheld. The trial Magistrate is directed to proceed on spot on the 15th of March 1984, where he shall record the evidence of the parties and decide the case forthwith. Parties who were present in the Court are directed to remain present on the spot on the date fixed for hearing. M.Z. M. Order accordingly.