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1971 Supreme(Gau) 4
GAUHATI HIGH COURT
R.S. Bindra, J.
RABINDRA KUMAR BHATTACHARJEE
VERSUS
DHARMA GOUR AND OTHERS
Criminal Ref. No. 1 of 1971 (Made by Addl. S.J., Tripura in Criminal Motion No. 240 of 1968),
Decided on : January 19, 1971.
The Magistrate has no jurisdiction to declare the possession of one party over the land in dispute or to issue a direction that the possession of that party shall not be disturbed until evicted in due course of law, while dropping the proceedings under section 145(5) Cr.P.C.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 145 - PRELIMINARY ORDER - CANCELLATION - JURISDICTION OF MAGISTRATE - POSSESSION OF LAND - DECLARATION BY MAGISTRATE - VALIDITY.
Fact of the Case:
A dispute arose between Rabindra Kumar and Dharma Gour and his seven associates over the possession of 5 kanis of land in village Dewan Pasha. The Officer-in-charge of the police station at Dharmanagar submitted a report to the Magistrate First Class, Dharmanagar, stating that there was an apprehension of breach of peace over the possession of the land. The Magistrate passed a preliminary order under section 145(1) Cr.P.C. and attached the land. Rabindra Kumar applied for sale by auction of the crops standing on the land, and Dharma Gour petitioned the Magistrate for dropping the proceedings under section 145, claiming undisputed possession of the land. The Magistrate dropped the proceedings under section 145(5) and declared that the second party, which was in possession of the land, would remain so until evicted in due course of law. Rabindra Kumar challenged the Magistrate's order in revision.
Finding of the Court:
The High Court held that the Magistrate had no jurisdiction to declare the possession of the second party over the land in dispute or to issue a direction that the possession of that party shall not be disturbed until evicted in due course of law, while dropping the proceedings under sub-section (5). The Court also held that the Magistrate had not given Rabindra Kumar an opportunity to oppose the prayer made by Dharma Gour for dropping the proceedings.
Issues: 1. Whether the Magistrate had jurisdiction to declare the possession of the second party over the land in dispute and to issue a direction that the possession of that party shall not be disturbed until evicted in due course of law, while dropping the proceedings under sub-section (5)? 2. Whether the Magistrate had given Rabindra Kumar an opportunity to oppose the prayer made by Dharma Gour for dropping the proceedings?
Ratio Decidendi: 1. The Court held that the Magistrate had no jurisdiction to declare the possession of the second party over the land in dispute or to issue a direction that the possession of that party shall not be disturbed until evicted in due course of law, while dropping the proceedings under sub-section (5). The Court relied on the plain reading of section 145(5) Cr.P.C., which provides that once the preliminary order is cancelled, all further proceedings in the case have to be stayed, and the Magistrate ceases to have jurisdiction to deal with the question of possession. 2. The Court held that the Magistrate had not given Rabindra Kumar an opportunity to oppose the prayer made by Dharma Gour for dropping the proceedings. The Court noted that there was nothing on the record to indicate that notice of Dharma Gour's application dated 30th November, 1968, had been formally issued to Rabindra Kumar.
Final Decision: The High Court quashed the Magistrate's order dated 11-12-1968 and remanded the case to the Magistrate with the direction that he should dispose it of afresh after allowing an opportunity to the parties to put in their written statements, affidavits and documents in support of their claims to the possession of the land in dispute.
To appreciate the legal point involved in this reference made by the Additional Sessions Judge. Tripura, under section 438 Cr.P.C., the relevant facts must be briefly set out. The revision petitioner Rabindra Kumar before the Additional Sessions Judge complained to the Officer-in-charge of the police station at Dharmanagar that there was apprehension of breach of peace in respect of 5 kanis of land situate in village Dewan Pasha. That Officer-in-Charge made inquiry into that complaint and then submitted a report to the Magistrate First Class. Dharmanagar, on 23-11-1968 stating that there was actually an apprehension of breach of peace over the possession of the land mentioned between Rabindra Kumar on one hand and Dharma Gour and his seven associates, the respondents herein, on the other. The learned Magistrate passed preliminary order under sub-section (1) of section 145 Cr.P.C. on the same date and simultaneously directed attachment of the land. He issued notices to the two parties calling upon them to put in written statements, affidavits and documents in support of their rival claims by 17-12-1968. On 28-11-1968 Rabindra Kumar, mentioned as first party in the preliminary order, moved an application praying to the Magistrate for sale by auction of the crops then standing on the land in dispute. Notice of this application was issued to the second party for 2-12-1968.
In the meanwhile, Dharma Gour, one out of the right person constituting the second party, petitioned the Magistrate for dropping the proceedings under section 145 on the footing that he had been in undisputed possession of the land in dispute over along period and that there did not exist, nor had ever existed, any dispute of the nature mentioned in sub-section (1) of section 145 respecting that land. It is not clear from the record whether notice of this petition of Dharma Gour was issued either to his seven associates of the second part to Rabindra Kumar, the first party, Neither the application of Dharma Gour bears any order dated 30th of November, 1968, or of any subsequent date, not the order-sheet indicates that notice of that application was sent to other persons on the record. The order-sheet contains two brief orders subsequent to the preliminary order dated 23-11-1968. One of them is dated 3rd of December, 1968. The former reads :
"Both parties present. Heard 2nd party To 4-2-1968". The second order runs thus : "Both parties present, Heard first party. To 11-12-68". It was on 11-12-1968 that the Magistrate passed an order dropping (5) of section 145 Cr.P.C. and vacated the attachment. At the same time he declared that "The 2nd party which is in possession of the land will remain so until evicted in due course of law" and added that "The produce of the land will naturally go with 2nd party".
2. Aggrieved by that order of the Magistrate, Rabindra Kumar took the matter in revision to the Court of Session. The revision petition came up for hearing before Shri S. M. Ali, the Additional Sessions Judge, who, by his order dated 29th of May, 1970, has made a reference to this Court recommending that the order dated 11-12-1968 of the Magistrate should be quashed and the case remitted to him with the necessary directions.
3. Shri R. Ghosh representing the revision petitioner, submitted that his client having not been afforded an opportunity to argue the petition made by Dharma Gour for cancellation of the preliminary order and dropping the proceedings, the impugned order must be set aside and the case remanded to the Magistrate for proceeding therewith according to the provisions of law. Another point raised by Shri Ghosh was that while dropping the proceeding under sub-section (5) the Magistrate has no jurisdiction to give a finding which one out of the parties in contest was in possession of the land on the date of the preliminary order or to declare that that party shall continue in possession until evicted therefrom in due course of law.
Shri A. K. S. C
