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HIGH COURT OF ORISSA
S. K. Ray, J.
HADU KHAN - Appellant
Versus
MAHADEV DAS - Respondent
Criminal Revn. 231 Of 1966
Decided On : MARCH 27, 1968
CRIMINAL PROCEDURE CODE - SECTION 145 - CONVERSION OF SECTION 144 PROCEEDING TO SECTION 145 PROCEEDING - CONDITIONS - JURISDICTION OF MAGISTRATE - DISCRETION OF MAGISTRATE IN TREATING WRONGFULLY DISPOSSESSED PERSON AS IN POSSESSION - SECOND PROVISO TO SUB-SECTION (4) OF SECTION 145, CR. P. C.
Fact of the Case:
The petitioners were members of the second party in a proceeding under section 145, Cr. P. C. to quash the order dated 28-3-66 passed by the Magistrate, 1st Class, Athagarh, declaring the possession of the first party in respect of 50. 99 acres of Bhogra lands in village Kotapala. The petitioners claimed to be Bhag tenants under the Sarbarakar and were paying rent to him during his lifetime. After his death during the period of State management, they were paying rent to the Sarbara-kar in de facto management. The first party was appointed Sarabarakar in respect of the lands in dispute on 24-2-65 and took delivery of possession on 21-3-65. At the commencement of the next agricultural season, conflict between the parties started and a case under Sections 143 and 447, I. P. C. , was instituted by the first party against the members of the second party, on the allegation that they trespassed upon the land in dispute in which the petitioners were ultimately acquitted. Thereafter, on 20-6-65, the police submitted a report for initiating proceedings under Section 144, Cr. P. C. against the petitioners and accordingly the Magistrate issued a prohibitory order under Section 144 on 28-6-65 restraining the petitioners from coming over the land. The case under Section 144 was registered as Misc. Case No. 15 of 1965.
Finding of the Court:
The court held that the Magistrate had no jurisdiction to pass the order declaring the possession of the first party in respect of the lands in dispute. The court also held that the Magistrate had misconceived the law and in so doing acted beyond his jurisdiction. The court further held that the Magistrate had ignored the second order passed on 11-9-1965 which appears to have been acted upon.
Issues: 1. Whether the Magistrate had jurisdiction to pass the order declaring the possession of the first party in respect of the lands in dispute? 2. Whether the Magistrate had misconceived the law and in so doing acted beyond his jurisdiction? 3. Whether the Magistrate had ignored the second order passed on 11-9-1965 which appears to have been acted upon?
Ratio Decidendi: 1. The Magistrate had no jurisdiction to pass the order declaring the possession of the first party in respect of the lands in dispute because he had not complied with the requirements of Section 145, Cr. P. C. 2. The Magistrate had misconceived the law and in so doing acted beyond his jurisdiction because he had decided the question of possession with reference to a date which can never be regarded as date of preliminary order while he issued notices to the parties directing their attention to 11-9-1965 as the date of preliminary order with reference to which the parties must obviously have confined their evidence. 3. The Magistrate had ignored the second order passed on 11-9-1965 which appears to have been acted upon because he had not considered the evidence adduced by the parties with reference to the date of preliminary order specified in that order.
Final Decision: The court quashed the order of the Magistrate and held that the quashing would not bar initiating another proceeding either under section 144 or 145, Cr. P. C. , if the situation so warrants in future.
S. K. RAY, J.
( 1 ) THIS is a petition by the members of the second party in a proceeding under section 145, Cr. P. C. to quash the order dated 28-3-66 passed by Sri K. M. Ram, magistrate, 1st Class, Athagarh, declaring the possession of the first party in respect of 50. 99 acres of Bhogra lands in village Kotapala.
( 2 ) ONE Dasarathi was the Sarbarakar in respect of these Bhogra lands which are the subject-matter of the dispute in the 145 proceeding. In the year 1955, these lands were kept under the direct management of the State for some time and then another Sarbarakar was vested with the responsibility of management of these lands. According to the petitioners, they were the Bhag tenants under the said dasarathi and were paying rent to him during his lifetime. After his death during the period of State management thery were paying rent to the Sarbara-kar in de facto management. The first party was appointed Sarabarakar in respect of the lands in dispute on 24-2-65 and took delivery of possession on 21-3-65. At the commencement of the next agricultural season conflict between the parties started and case under Sections 143 and 447, I. P. C. , was instituted by the first party against the members of the second party, on the allegation that they trespassed upon the land in dispute in which the petitioners were ultimately acquitted. Thereafter on 20-6-65, the police submitted a report for initiating proceedings under Section 144, Cr. P. C. against the petitioners and accordingly the Magistrate issued a prohibitory order under Section 144 on 28-6-65 restraining the petitioners from coming over the land. The case under Section 144 was registered as Misc. Case No. 15 of 1965.
( 3 ) WHILE that case was proceeding, the Magistrate by his order dated 20-8-65 on a motion by the advocate for the first party converted the proceeding into one under section 145, directing issue of notices under the said section. The date fixed for appearance of the parties and for filing of their written statements was 18-9-65. The material portion of his order is stated below :--". . . . . and there is every justification to convert this to a proceeding under Sec. 145, Cr. P. C. Issue notice under Section 145, Cr. P. C. fixed for 18-9-65". No notice, however, was issued in pursuance of this order and nothing further seems to have been done in accordance with the requirements of Section 145, Cr. P. C. Another fact to be noted in this connection is that on the date of conversion of the proceeding under Section 144, Criminal P. C. into one under Section 145, criminal P. C. , only one member of the second party was present in person, viz. , one Abuul Gaffar and no other member of the second party was present either in person or through counsel. So they had no knowledge of this conver sion of the proceeding.
( 4 ) THE order-sheet in the miscellaneous case further shows that on 11-9-1965, a fresh preliminary order under Section 145, Cr. P. C. , was issued by the Magistrate basing his satisfaction on the old police report dated 20-6-1965 in pursuance of which the order under Section 144, Cr. P. C. , had been passed restraining -the second party members from going upon the land. The Magistrate recites in the said order that a dispute likely to cause a breach of the peace exists between the said parties and from the police report he was satisfied that this is a fit case for conversion to a proceeding under Section 145, Cr. P. C. Thus, it appears that this preliminary order was by way of converting the 144 Cr. P. C. proceeding to one under Section 145, Cr. P. C. , when the order under Section 144, Cr. P. C. , itself had lost its effect by operation of law, two months having elapsed from the date of its passing.
( 5 ) SECTION 144, Cr. P. C. , empowers a Magistrate to act if there is sufficient ground for proceeding thereunder and covers cases of explosive character of disputes concerning any land threatening breach of peace. On receiving any such information,
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