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Rajasthan High Court
Dave, J.
Th. Jaikrit Singh, Administrate His Highness, Jodhpur - Appellant
Versus
Sohan Raj - Respondents
S.B. Criminal Reference No. 10 of 1958
Decided On : November 06, 1958
It is left to the discretion of the State, Government to confer all the powers of a District Magistrate provided in part V of Schedule III upon Additional District Magistrate or to withhold certain powers from him. It cannot be said, under the circumstances, that an Additional District Magistrate would be at par with a District Magistrate as soon as he is appointed as an Additional District Magistrate under sec. 10(2) Cr.P.C. (Para 7)
The scheme of the Code, seems to be that in every district, there would be only one District Magistrate and the Additional District Magistrate has not been placed at par with him. Consequently the Court of Magistrate of the 1st class appointed as an Additional District Magistrate, is inferior to the Court of the District Magistrate for the purposes of sec. 435(1) Cr.P.C. (Para 7)
It must however be made clear that it should not be taken to mean that if the Additional District Magistrate, who is himself invested with the powers under sec. 435 Cr.P.C. calls for some record of a inferior Court and makes a report under sec. 438 Cr.P.C. the District Magistrate would still be able to exercise his powers under sec. 435 Cr.P.C. in respect of the order of the Additional District Magistrate, because in that case, the Additional District Magistrate would be exercising the powers of District Magistrate himself. (Para 8)
An application under sec. 145 Cr.P.C. cannot be dismissed simply because it is not filed by the owner of the property or that he is not brought on record. If the Magistrate finds that an application is brought by some person like a Chowkidar or a mere servant, who is himself not involved in the dispute and who is not in actual possession over the property and if it is also found that the owner or the person in actual possession is knowingly not coming forward for some reasons, then he may be justified in dismissing such an application but it would not be correct to dismiss an application in which the actual disputants are on its record. The object of sec. 145 Cr.P.C. is to prevent breach of peace arising out of dispute relating to immovable property and if the Magistrate is satisfied that such a dispute is likely to cause breach of peace, he should make an order stating the grounds of his satisfaction and require the parties concerned in such a dispute to attend his court and file written statements of their respective possession over the subject of dispute. (Para 12)
If there is a dispute between the master and the servant, themselves, about the possession of property, then the possession will have to be interpreted in the sence of actual physical possession.
The term possession connotes an intricate and subtle legal conception, which changes with circumstances. Sec. 145 Cr.P.C. deals with disputes about actual physical possession and, therefore, it cannot be said that in no case its provisions can be invoked, if the dispute is between a master and a servant. (Para 16)
It would neither be safe nor proper to decide whether there was a completed gift and whether it was valid or not, because this Court is not called upon to decide these questions in criminal proceedings. It would be for a civil court to decide these matters, if and when a civil action is brought by one of the parties. (Para 16)
The Magistrates sole concern is to prevent a breach of the peace and to maintain the possession of the person, who is in actual possession of the disputed property on the date of preliminary order and if the Magistrate finds that any party has within two months next be-fore the date of such order, been forcibly and wrongfully dispossessed, then he may treat the party, so dispossessed, as if he has been in possession of the property on the date of the preliminary order. If a rightful owner allows even a rank trespasser to remain in possession of the disputed property for more than two months, then the Magistrate would maintain the possession even of that trespasser. (Para 18)
2. The dispute between the parties relates to bungalow No. 17 which is situated in the precincts of Ratanada Palace Jodhpur. It is common ground between the parties that the said bungalow belonged to the late His Highness Maharaja Hanwant Singhji, the then ruler of Jodhpur State till the 13th of January, 1948, when he was blessed with a son who has succeeded to his properties. One Mr. G.H. Godwin was officer-in-charge the "State Aviation" and the said bungalow was given to him for his residence. Even after the merger of the former State of Jodhpur in the State of Rajasthan, Mr. Godwin continued to remain in the personal service of the late His Highness Maharaja Hanwant Singhji. Maharaja Hanwant Singhji expired on 26th of 1952. Thereafter, Mr. Godwins services were terminated and he left for England in October, 1952. Nearly 2 years thereafter, an occurrence is said to have taken place on 14.10.1954 and the present case arises out of the same.
3. On the 22nd of October, 1954, the non-petitioner in this Court Shri Sohanraj (who will be hereinafter referred to as Party No. 1) presented an application in the court of Extra Magistrate First Class, Jodhpur City under sec. 145 of the Code of Criminal Procedure. It was alleged by him that the said bungalow was given by the late His Highness Maharaja Hanwant Singhji to Mr. Godwin in gift before his demise and that the commands of His Highness were confirmed on 14.3.1952 by members of Advisory Committee. Mr. Godwin was, therefore, owner of the said property. It was further stated that when Mr. Godwin proceeded to England, he handed over the possession of the bungalow together with furniture placed therein, to him (party No, 1) under the supervision of Shri Maghraj Bhansali, Advocate and that Mr. Godwin had informed the Household Comptroller of this arrangement by his letter dated 19-1C-1952. Since then, the said bungalow was in his possession and Madho Chowkidar, who was continuing in the employment of Mr. Godwin since his presence in the State, was looking after the said property. On the 14th of October, 1954, he (party No. 1) was informed by Madho Chowkidar that Thakur Jaikrit Singhji, Chandra Singhji and others (who will be hereinafter referred to as party No. 2 for the sake of brevity) came to that bungalow and forcibly took possession of the same by putting their lock in addition to the lock of party No. 1 which was already present on the main entrance of the building. It was also mentioned in the application that party No. 1 had presented an application to police authorities on 15.10.1954 about the said trespass but no action was taken. It was pointed out that party No. 2 was pot prepared to remove its possession over the property, that party No. 1 was being forcibly ousted from the possession, that there was a likelihood of breach of peace and, therefore, proceedings under sec. 145 Cr.P.C. should be taken. The Magistrate forwarded the application to Sub-Inspector of Police for enquiry and report. Accor-dingly, the police made some enquiry and then its report was received by the Magistrate he ordered the papers to be filed on 4.12.1954 saying that there was no apprehension of breach of peace. Being dissatisfied with this order party No. 1 presented another application before the Additional District Magistrate, Jodhpur on 11.12.1954. The Additional District Magistrate was satisfied on perusal of the application and affidavits filed there-with, that there was a likelihood of breach of peace and, therefore, he passed a preliminary order on the same day and directed both the parties to put in written state ments of their respective claims as respects the fact of actual possession of the property in dispute. Both the
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