1968 P Cr (PLP)

"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 boun daries 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 possession of the subject of dispute." Now I shall examine the judgment of the Supreme Court in Muhammad Ishaque v. Nur Mahal Begum (PLD 1961 SC426), on which counsel for the respondent based his case. The facts of that case were that the respondent had filed an application under section 145, Cr. P. C. which was granted by the Magistrate in the following words: "Seen petitions and reports. I am satisfied that there is serious apprehension of breach of peace and immediate measures r are necessary: Start proceedings under section 145, Cr. P. C." It appeared that the police reports, on which the Magistrate quoted in this order quoted above, stated that the Deputy Superin tendent Police had made a thorough inquiry into the relevant facts and had come to the conclusion that "there is every possibility of the breach of the peace". The order passed by the learned Magistrate was challenged before the Supreme Court on the ground that it did not state the grounds upon which the Magistrate claimed to have been satisfied that there was an apprehension of a breach of the peace, although such a statement was mandatory under section 145, Cr. P. C. This argument was rejected by the Supreme Court. After analysing the elements essential for the foundation of the jurisdiction of a Magistrate under section 145, Cr. P. C., Mr. Justice Hamoodur Rahman, who delivered the judgment of the Court, stated at page 429 of the judgment as follows "If these elements exist, they ' are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction it cannot be said that it has only the jurisdiction to make it correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. We are unable, therefore, to hold that the mere omission to state the grounds, upon which the Court is so satisfied in the initial order under section 145 of the Criminal Procedure Code necessarily makes the order also without jurisdiction. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and mere non-compliance with a rule of procedure generally is not an illegality vitiating the entire proceedings." This judgment supports the contention of the respondent that the failure of the Magistrate to disclose in his order of 26th March 1968 any grounds for taking action against the applicants before me was an irregularity, not an illegality. Therefore although it is to be regretted that the Magistrate passed an order in disregard of the provisions of section 145, Cr. P. C. the order is not illegal on that ground and the contention of the appellant that it should be set aside on this ground has to be rejected.

8. However, the first order of the Magistrate only states that there was a dispute and does not contain any statement that the Magistrate was satisfied on the material before him of any apprehension of a breach of the peace. Even the second order does not mention any such apprehension. A Magistrate is presumed to know, when passing orders on an application under section 145, Cr. P. C. the importance of the distinction between a dispute and a dispute likely to lead to a breach of the peace. In this connection, the Magistrate was aware from the application be fore him that a dispute between the parties, namely, Suit No. 126/ 1967 in the Court of Civil Judge, was pending. The opponents (who are the applicants before me) had earlier filed an application under section 145, Cr. P. C. which had been dismissed. There after they had filed an application to vacate his orders of 26th March 1968, which he kept on adjourning. If there had been any apprehension of a breach of the peace, it would have been his duty to dispose of that application without delay. The fact that he kept on adjourning that application, and the fact that there was no police report, nor any independent evidence to support the application of the first respondent under section 145, Cr. P. C. are circumstances which go against the contention of the respondent that, at the relevant time, the Magistrate was satisfied that a breach of the peace was likely. On the whole in the circumstances discussed, the use of the word `dispute' by the Magistrate in the impugned order appears to be deliberate. The order means what it says, namely, that there was a dispute only, and it cannot therefore be inferred either from the record or from the circumstances of the case that the Magistrate was satisfied that a breach of the peace was likely. Counsel conten ded that the order of notice and the second order for the appoint ment of a Receiver, must be deemed to be an acceptance by the Magistrate of all the allegations of the first respondent, so that it should be implied that the Magistrate was satisfied that a breach of the peace was likely. If counsel's interpretation of the impu gned orders is accepted, it would not only nullify the provisions of section 145, Cr. P. C. but it would encourage the use of the Criminal Courts for settling civil disputes, an unfortunate practice which is becoming common. However counsel conten ded that this plea advanced by him was supported by the afore said judgment of the Supreme Court. Counsel was not able to refer me to any observations in support of his submission. I have carefully examined the said judgment and I find that their Lordships have drawn a distinction between defects in the jurisdic tion of a Magistrate and defects in the exercise of the jurisdiction by a Magistrate who has acquired jurisdiction under section 145(1), Cr. P. C. Thus at page 428 of the judgment, after setting out the provisions of section 145 (1) of Cr. P. C. Mr. Justice Hamoodur Rahman states: "It is necessary, according to the tenor of the section that before an order thereunder can be issued the Magistrate must first be satisfied with regard to the matters therein specified and then after being so satisfied, he shall make an order in writing "stating the grounds of his being so satisfied". This statutory provisions, therefore, does prescribe the mode for the exercise of the jurisdiction conferred by it and there can be no doubt that the Magistrate exercising the said jurisdiction are expected to comply strictly with the said provisions of law. But to say that a failure to follow the prescribed mode must in every case render the exercise of the Jurisdiction invalid and illegal is, in our opin ion, too wide a proposition. In our view, there is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to be exercised. The elements, necessary for the foundation of jurisdic tion under section 145 of the Criminal Procedure Code are that the Magistrate must be satisfied :- (a) that a dispute likely to cause a breach of the peace; (b) that the dispute refers to land or water or the boundaries thereof; and (c) that such land or water is situated within the- limits of his territorial jurisdiction." It was after drawing this distinction that their Lordships held that when a Magistrate has acquired jurisdiction under section 145, Cr. P. C. his subsequent failure to record the reasons for exercising that jurisdiction, as required by that section was only an irregularity. It appears to me that this distinction between the elements constituting the jurisdiction of the Magistrate and the exercise of that jurisdiction, defects in which were mere irregularities, would not have been drawn, unless their Lordships had been of the view that unlike defects in the exercise of jurisdic tion non-compliance with the elements of jurisdiction was fatal to an order under section 145, Criminal Procedure Code. There fore, in my humble opinion, this judgment supports the conten tion of the applicants ; in any case it does not support the plea of the respondent. Counsel for the respondent also relied on other single bench judgments of this Court, but before I consider these judgments, I have to refer to a judgment, cited by counsel for the appellant, of a Division Bench of this Court reported in Gul Muhammad v. Mst. Kubra Begum (P L D 1961 Pesh. 76).

9. In Gul Muhammad v. Mst. Kubra Begum the respon dent had filed an application against the appellant, and as in the case before me, the Magistrate had merely ordered notice on the said application without recording his satisfac tion that there was likelihood of any breach of the peace. Thereafter he heard the parties and after recording evidence passed an order against Gul Muhammad, the appellant in the High Court. It was contended in the High Court that as the Magistrate had taken action under section 145, Cr. P. C. without stating that he was satisfied of the likelihood of a breach of the peace, the entire proceedings were illegal and should be quashed. On the other hand the respondent con tended that the failure of the Magistrate to record his satisfac tion of the likelihood of a breach of the peace was a mere irregularity, and reliance was placed on an earlier judgment of the Court reported in P L D 1960 Pesh. 47 and other judgments. In repelling the contention of the respondent Mr. Justice Ortcheson, who delivered the judgment of the Court, stated as follows : "The above remarks, in my opinion, clearly imply that it is not sufficient that a Magistrate should have received infor mation that a breach of the peace is apprehended, it being further imperative that he should be satisfied that the infor mation is true. If it can be ascertained from the material on the record that the Magistrate was so satisfied, the mere _ absence of a preliminary order would, no doubt; not render his subsequent proceedings illegal, but the- difficulty is that unless a preliminary order is recorded stating that the Magis trate is satisfied of the existence of an apprehension of a breach of the peace and giving his reasons for being so satisfied, it is not easy for a superior Court to discover whether this essential condition for the assumption of jurisdic tion has been fulfilled. The mere fact that a Magistrate issues notice to the parties to attend his Court and put in written statement by no means necessarily implies recognition on his part that his jurisdiction depends on the existence of r a danger of a breach of the peace. 1n the case now before us there is nothing; to indicate clearly that when the Ilaqa f Magistrate served notice on the parties on the 12th of March 1958 he apprehended a breach of the peace, and I am conse quently inclined to the view that the whole of the subsequent proceedings are without jurisdiction." I have explained that, in the instant case, there is nothing to show expressly or even by necessary implication that the Magistrate had been satisfied that a breach of the peace was likely, therefore these observations support the case of the applicants.

10. I have pointed out that the practice of using the criminal Courts in the settlement of civil disputes is to be deprecated. On this aspect of the case, counsel for applicants cited the judgment of this Court reported in State v. Abdul Sattar (P L D 1965 Kar. 305) which has been of great assistance to me, as the facts of this case are identical to those of the case before me. In P L D 1965 Kar. 305 there was a dispute about the possession of a flat in Karachi. The respondent in that case claimed that the applicant had been his servant and was only a licensee, therefore he made an application under sec tion 145, Cr. P. C. and also asked that the premises be sealed. As in the case before me, the Magistrate passed an order for notice on the respondent and another order that the premises be sealed. The contention in the High Court was that the proceedings shall be quashed, because there was no preliminary order by the Magistrate that he was satisfied of the likelihood of a breach of the peace. In accepting this contention, Farooqui, J. stated at page 308 of the judgment as follows: "Mr. Abdul Kadir Shaikh, the learned Additional Advocate- General, did not support this reference and he pointed out that there are decided cases in which it has been held that even if the Magistrate passing an order under section 145 (I), Cr. P. C. does not expressly state the ground of satisfaction as to the apprehension of breach of the peace the order can still be supported if there are other materials which would show that the Magistrate in fact was satisfied as regards such a danger. It is, however, quite clear to me that section 145 (1), Cr. P. C. makes an imperative provision requiring the Magistrate to state the grounds of his being satisfied that a dispute likely to cause a breach of the peace exists. The reason for this is obvious. The criminal Courts are not expected to decide disputes of civil nature relating to possession over immovable property. That is the function of the civil Court. They acquire jurisdiction only when there is apprehension of breach of peace. That being so it must appear from the order of the Magistrate that he had applied his mind to the question as regards the breach of peace because it is the existence of such a dispute which gives him jurisdiction to entertain the matter. This element is completely absent from the order dated the 22nd July 1960, passed by the learned Magistrate. That order must therefore be set aside." I am in respectful agreement with these observations. Counsel for the appellant also referred to a judgment of this Court in P L D 1963 B J 27 in which it was held that the satisfaction of the Magistrate was a pre-requisite of any order under section 145, Cr. P. C.

11. I shall no\v consider the judgments of this Court cited by counsel for the respondent on the construction of subsection (1) of section 145, Cr. P. C. These cases are reported in Karam Bibi v. Rabia Bibi (P L D 1961 Lah. 500), Gujarkhan Rawalpindi ;1Tuslun Transport v. Seth Asghar Ali (P L D 1966 Lah. 435) and A. Q. Shaukat and another v. S. M. Jafar (P L D 1966 Lah. 809). The case of Karam Bibi v. Rabia Bib! decided that a Magistrate has the power to appoint a Receiver when he takes action under section 145, Cr. P. C. Therefore this judgment supports the second argument of counsel for the respondent that the second order of the Magistrate appointing a Receiver of the crops of the disputed property was in accordance with the law. I shall now con sider the judgment of this Court in Shaukat v. Jafar. The fats of that case were that a Magistrate had passed an order under subsection (4) of section 145, Cr. P. C. attaching the property in dispute without giving any reasons for his order. This order was challenged in the High Court by the appellant on the ground that it did not contain any reasons. The provisions of subsection (1) of section 145, Cr. P. C. which I have quoted, require the Magistrate to state the grounds for taking action if he exercises jurisdiction under that subsection, but the provisions of subsection (4), which confer ;t power on the Magistrate to attach property in dispute, do not contain any provisions requiring the Magistrate to state the reasons for passing an order of attachment, if such an order is passed, The conten tion of the applicant was repelled by the Court on the basis of this difference between the provisions of subsection (1) and of subsection (4) of section 145, Cr. P. C. At page 812 Mr. Justice Cheema stated as follows :

"Taking the last point first, it may be stated that the argu ment has nothing to commend itself, as unlike subsection (1) of section 145, which makes it obligatory on the Magistrate to make an order in writing stating the grounds of his being satisfied about the breach of peace, there is no such obligation attached in the second proviso. Once, the Magistrate is satisfied regarding the existence of a dispute likely to cause a breach of peace concerning any land or water or boundaries thereof within the local limits of the jurisdiction, he can move in the matter in the manner provided in subsection (1) of course stating the grounds of his being so satisfied. It might be a case of emergency at the very outset, or might subsequently develop into one. If it had been the intention of the Legislature to make obligatory on the Magistrate the statement of grounds regarding existence, of emergency there was nothing to prevent it from saying so, as was done in subsection (1) '" These observations do not help the case of the respondent in any way, because the question for determination in the applica tion before me is whether the Magistrate has complied with the provisions of section 145 (1), Cr. P. C. However, the judgment of this Court in P L D 1966 Lah. 435 supports the case of the respondent, although the facts of that case were rather peculiar. The material facts in that case were that on an application under section 145 (1), Cr. P. C. the Magistrate had passed an order of notice, thereafter he had recorded the evidence of the complainant and three witnesses, and fixed the case for the evidence of the other side. On 20th July 1963, he passed an order attaching the property in dispute. In this order the Magistrate stated that there was apprehension of the breach of the peace. This second order of 20th July 1963, which referred to the apprehension of a breach of peace, was challenged in the High Court on the ground that a preliminary order under subsection (1) of sec tion 145, Cr. P. C. had not been passed, therefore, all subsequent proceedings, including the order of 20th July 1963, should be quashed. This contention was repelled by Mr. Justice Khattak, who observed at page 439, in reference to the provisions of sub section (1) of section 145, Cr. P. C. as follows: "The section further provides he shall make an order in writing stating the grounds of his being so satisfied.' What is satisfaction, is a question of fact to be decided by him. No form for stating the grounds is laid down in law, therefore, proceeding on the information received or merely repeating the same in his order means the same. From no source other than the material before him he is likely to get information and be satisfied to take action. It therefore, follows that the omission of the repetition is a mere formality and no departure from the procedure." Although the facts of this judgment are distinguishable, because, unlike the instant case, there was independent evidence to justify the impugned order of the Magistrate, yet the observa tions quoted are very wide and support the case of the respondent. As pointed out by the Supreme Court in Muhammad Ishaque v. Noor Mahal Begun the satisfaction of the Magistrate of an apprehension of a breach of the peace, is a condition of his jurisdiction. I agree with the observations of Mr. Justice Khattak that no particular form of words is required to indicate the satisfaction of the Magistrate of an apprehension of a breach of the peace. But how can that satisfaction be proved unless the Magistrate has recorded that satisfaction in his order? As that satisfaction is a condition of the Magistrate's jurisdiction. with respect, I am not able to agree with the view of my learned brother that the omission of a Magistrate to record his satisfaction is a "mere irregularity". In my opinion, an omission to comply with a. condition of jurisdiction in a criminal statute is not a mere irregularity but an illegality which renders subsequent orders illegal. I am also not able to agree with the observation, of my learned brother that if a Magistrate takes action on an application under section 14.5, Cr. P. C. by "proceedings on the information received", such action by the Magistrate must be treated as an indication of his satisfaction that a breach of the peace was likely. The view of my learned brother is inconsistent with the judgment of a Division Bench of this Court reported in Gut Muhammad v. Mst. Kubra Begum which unfortunately was not cited before my learned brother; therefore with great respect I cannot follow the judgment of this Court in P L D 1966 Lab.

435. In the result, in the instant case, the orders of the Magistrate are illegal and have to be set aside because the Magistrate has not passed any order showing that a breach of the peace was likely. It is there fore not necessary for me to consider the argument of the respon dent that the Magistrate could appoint a Receiver of the disputed property under the provisions of section 145, Cr. P: C. Although this argument is clearly supported by the judgment of this Court in P L D 1961 Lab. 500 which counsel cited.

12. Counsel for the respondent further argued that the revision application for quashing the said orders was premature, because the application dated 30th March 1968 of the applicants under section 145 (4) of the Cr. P. C. had not been disposed of by the Magistrate. This argument is not sound. If the applicants had waited for the disposal of their application under section 145 (4), Cr. P. C. the respondents would have contended that the applicants had elected to accept the orders of the Magistrate. In any case, the objection of the applicants relates to the jurisdic tion of the Magistrate, therefore they are entitled to raise it.

13. Finally Mr. Murtaza Hussain, who appeared for the State, supported the arguments of counsel for the first respondent, and advanced an additional argument that the application before me should be dismissed, because, in the circumstances of the case, no application was maintainable under section 561-A, Cr. P. C. In support of this argument, Mr. Murtaza Hussain referred me to the judgments of the Supreme Court in Ghulam Muhammad v. Muzammal Khan and others (P L D 1967 S C 317) and Raja Haq iVawaz v. Muhammad Afzal and others (P L D 1967 S C 354). In Ghulam Muhammad v. Muzammal Khan and others the material facts were that the respondent before the Supreme Court had been challaned under sections 408/109 and 468/109, P. P. C. After considerable evidence had been recorded, charges were framed against the respondent by the Magistrate who had seisin of the case. The respondent filed a petition in the High Court under section 561-A, Cr. P. C. praying that the proceedings against them be quashed. This application was allowed by the High Court. The appellant filed an appeal in the Supreme Court, which was allowed. Counsel referred me to the observations of the Supreme Court on the powers of this Court under section 561-A, Cr. P. C. At page 325 of the judgment the Court stated "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of Justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence." The same view was taken by the Supreme Court in Raja Haq Nawaz v. Muhammad Aft al f am in respectful agreement with these judgments which are binding on me. But as I have pointed, the application before me is both under section 561-A and section 439, Cr. P. C. There the judgments cited are distinguishable. Further in Ghulam Muhammad v. Muzammal Khan after the observations to which counsel referred me, the Supreme Court stated as follows: "If the respondents were aggrieved by the charge they could well have invoked the revisional jurisdiction of the High Court, as, indeed they did after they filed in a similar application for the quashing of the proceedings under section 145, Cr. P. C. in one of the litigations started by the appellant herein against them. It is worth noting that in that case the petition under section 561-A was first rejected by the same High Court, be cause a more specific remedy by way of a revision petition was available against the impugned order. This remedy was subsequently invoked under section 439 and relief was granted on the 9th of May 1960 by the High Court." Therefore the judgments cited do not support the case of the respondent, as their Lordships have clearly laid down that the remedy of revision to this Court is available against illegal orders. Confronted with this difficulty, counsel cited authority to show that an application, which was filed both under section 561-A and section 439, Cr. P. C. was inelegant an defective, and the practice of entertaining such applications should be deprecated. I agree with the view that such pleadings' should be deprecated. Unfortunately such pleadings are no unusual in this Court (see P L D 1965 Lab. 312). The question therefore is whether the application should be dismissed mere because inelegant pleadings are to be deprecated. In my opinion the practice of using the criminal Courts for settling civil disputes is to be deprecated much more. Further I have held that the orders of the Magistrate in the instant case are without jurisdic tion, therefore, these illegal orders cannot be upheld merely because of inelegant pleadings.

14. In the result, the application of the applicants is allowed and I quash both the orders of the Magistrate dated 26th March 1967. The Magistrate will now proceed to hear the application of the 1st respondent under section 145, Cr. P. C. according to law. Petition accepted.