The Magistrate has jurisdiction to initiate a proceeding under Section 145, Criminal Procedure Code, on his having satisfaction that there is apprehension of breach of peace relating to immovable property. The jurisdiction to initiate the proceeding does not depend on the manner in which he drew up the initial order.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 145 - JURISDICTION - PRELIMINARY ORDER - IRREGULARITY - PREJUDICE - SECTION 537 - DISCRETION OF HIGH COURT - SECTION 144 - CONVERSION TO SECTION 145 - DATE OF PRELIMINARY ORDER.
Fact of the Case:

A dispute arose over the possession of certain lands between two parties. The first party members claimed title to the lands through a mortgage decree and subsequent execution proceedings, while the petitioners, descendants of the original mortgagors, claimed to be recorded tenants in the settlement papers. A proceeding under Section 144, Criminal Procedure Code was initiated by the Magistrate on the application of the first party members, who were apprehensive of a breach of peace. The proceeding was later converted to one under Section 145, Criminal Procedure Code, but no formal preliminary order was drawn up by the Magistrate. The petitioners challenged the jurisdiction of the Magistrate on the ground of the absence of a preliminary order.
Finding of the Court:

The Court held that the Magistrate had jurisdiction to initiate the proceeding under Section 145, Criminal Procedure Code, as he was satisfied that there was apprehension of breach of peace relating to the immovable property. The failure to draw up a formal preliminary order was a mere irregularity and did not affect the question of jurisdiction. The Court further held that the petitioners were not prejudiced by the absence of a formal preliminary order, as they had notice of the proceedings and had participated in them by filing written statements and evidence. The Court also held that the date of the preliminary order would be the date on which the proceeding under Section 144, Criminal Procedure Code was initiated, as the proceeding under Section 145 was a continuation of the earlier proceeding.
Issues: 1. Whether the Magistrate had jurisdiction to initiate the proceeding under Section 145, Criminal Procedure Code, without drawing up a formal preliminary order? 2. Whether the petitioners were prejudiced by the absence of a formal preliminary order? 3. What was the date of the preliminary order in this case?
Ratio Decidendi: 1. The Magistrate had jurisdiction to initiate the proceeding under Section 145, Criminal Procedure Code, as he was satisfied that there was apprehension of breach of peace relating to the immovable property. The failure to draw up a formal preliminary order was a mere irregularity and did not affect the question of jurisdiction. 2. The petitioners were not prejudiced by the absence of a formal preliminary order, as they had notice of the proceedings and had participated in them by filing written statements and evidence. 3. The date of the preliminary order in this case was the date on which the proceeding under Section 144, Criminal Procedure Code was initiated, as the proceeding under Section 145 was a continuation of the earlier proceeding.
Final Decision: The Court dismissed the revision petition, holding that the Magistrate had jurisdiction to initiate the proceeding under Section 145, Criminal Procedure Code, and that the petitioners were not prejudiced by the absence of a formal preliminary order.

JUDGEMENT

G. K. Misra, C. J.:- Petitioners along with Opposite Parties 11 and 12 are members of the second party in a proceeding under S.145, Criminal procedure Code. Opposite Parties 1 to 10 are members of the first party. Disputed lands constitute 11.07 acres. The plot numbers in the Current Settlement (1930) with corresponding plot numbers in R.S. (1911) and running settlement (1965) are given hereunder :-

R.S.

(1911) Current Settlement

(1930) Running Settlement

(1965)

Plot No. Plot No. Plot No.

235 242 264

255 300 359

328 119 and 120 260 and 261

379 448 504

240 279 302 and 384

In the impugned order C.S. Plot numbers have been given. The first party members in their written statement have indicated the corresponding plot numbers in the three settlements. Sri Suresh Chandra Mohanty, an Advocate, who knows survey relaid the Revision and Current Settlement maps and confirmed that the plot numbers correspond as indicated above. In the Yadast (Ext. 12) 1930 Settlement plot numbers and 1965 settlement plot numbers have been mentioned.

2. The case of the members of the first party is as follows : The ancestors of the petitioners (hereinafter called as Beheras) were the owners of the disputed lands at the time of the Revision settlement. They mortgaged those lands along with other lands to the ancestors of the first party members (hereinafter called as Naiks). The mortgagors did not redeem the mortgage. The mortgagees got a mortgage decree. The decree was put into execution in Execution Case No. 107 of 1922 and the disputed properties along with other properties were purchased by the decree-holders on 26-5-1922. Delivery of possession through court under Ext. 10 was obtained on 24-1-1923. In Ext. 10 plot numbers were given according to the Revision Settlement. Though the Beheras were dispossessed through court they created disturbance in the possession of the Naiks as their names were recorded in the 1930 settlement papers. The Naiks filed Title Suit No. 57 of 1929 against the Beheras for declaration of title, confirmation of possession or in the alternative for recovery of possession and for permanent injunction. The suit related to the disputed lands and other lands. It was decreed on 28-8-1930. Ext. 8 is the judgement and Ext. 9 is the decree in that suit. The Subordinate Judge in that suit held that the Naiks had title and that possession had been delivered to them in Execution Case No. 107 of 1922 and they were continuing in possession of the properties. A permanent injunction was issued against the Beheras restraining them from interfering with the possession of the Naiks. The Naiks thereafter continued in possession and paid rent in evidence of which they filed rent receipts (Ext. 15 series and Ext. 20 series). In 1965, settlement operations started in the locality. The petitioners, the descendants of the Beheras, created disturbance in the peaceful possession of the first party members. On 20th of November, 1965 the first party members filed an application under Section 144 Cr. P.C. The disputed properties were referred to in the petition. The Beheras filed written statement showing cause. On 18-1-1966 the learned Magistrate converted the proceeding under Section 144, Criminal Procedure code to one under Section 145, Cri. Pro. Code in presence of both the parties and directed them to file their written statements, affidavits and documents in support of their respective cases. The leaned Magistrate did not, however, expressly state that a preliminary order was passed under Section 145, Criminal Procedure Code.

The relevant portion of the order may be extracted :

"xx xx In view of the above facts as a considerable time has passed after pronouncement of the Civil Court decree and as the parties are putting rival claims of possession I convert this proceeding to one under Section 145, Criminal Procedure Code for a fuller enquiry. The subject-matter of dispute is attached and the previously appointed receiver is to continue a

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1974 Supreme(Ori) 104

ORISSA HIGH COURTG. K. MISRA, C.J. AND B. K. RAY, J. PADMA CHARAN BEHERA AND OTHERSVERSUSPRAFULLA CHANDRA NAIK AND OTHERSCriminal Revn. No. 564 of 1973, Decided on : 20 -12 -1974.

ORISSA HIGH COURT
G. K. MISRA, C.J. AND B. K. RAY, J.
PADMA CHARAN BEHERA AND OTHERS
VERSUS
PRAFULLA CHANDRA NAIK AND OTHERS
Criminal Revn. No. 564 of 1973,
Decided on : 20 -12 -1974.