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'Criminal Revision Cases Nos. 336 of 1968 and 379 of 1969, decided on 20th November 1969.

----S. 145‑‑Dispute as to possession of immovable property‑Bargadar and constituted attorney‑‑Competent to initiate proceedings under S. 145, in absence of owner.

Dhondhai Singh v. Follet I L R 31 Cal. 48 rel.

Peare Lal v. Emperor A I R 1934 All. 853 distinguished.

---S. 145‑Police report‑Not a sacrosanct document‑Court not bound to accept result of inquiry arrived at by Police on question of possession.

---S. 145‑Dispute as to possession of immovable property‑Jurisdiction‑Rule issued by High Court staying operation of order made in proceeding under 5.145‑Subsequent petition disclosing fresh cause of apprehension of breach of peace concerning possession of same property, held, did not debar Magistrate from drawing up fresh proceedings under S. 145 in circumstance

Golam Hafez with Md. Yahya for Petitioner.

K. M. Sobhan with Razzaq Rehman for the Opposite‑Party,

Date of hearing: 17th November 1969.

These two petitions are taken up together for disposal. Petition No. 336 of 1968 arises out of an order passed on 8‑11‑67 drawing up a proceeding under section 145, Cr. P. C. on the prayer of the first‑party‑opposite‑party Md. Jainuddin Sardar who claimed to be in possession of the disputed land as Bargadar of his landlord Sudhir Kumar Chakrabarty and others. Petition No. 379 of 1969 ,arises out of another proceeding drawn up under section 145, Cr. P. C. on 27‑11‑68 at the instance of Asit Kumar Raha who claimed to be the constituted atto7ney ' of Sudhir Kumar Chakrabarty and others. In both the cases the, petitioner as well as the opposite‑party were restrained from entering upon the disputed land. The second‑party petitioner filed revisional applications before the Sessions Judge of Khulna praying for making a reference to this Court for setting aside the impugned orders but the prayers were rejected. Thereafter the petitioner obtained Rules in both the cases.

Mr. Golam Hafez the learned Advocate appearing on behalf of the petitioners in both the cases challenged the legality of the orders drawing up, proceedings under section 145, Cr. P. C. restraining the petitioner from entering upon the disputed land. It was contended that the proceeding in one case having been drawn up at the instance of Bargadar and in the other case by the constituted attorney in the absence of the alleged owner, were bad in law. On the other hand Mr. K. M: Sobhan the learned Advocate appearing on behalf of the opposite‑party, contended that there was no illegality in drawing up the proceedings at the instance of the Bargadar and the constituted, attorney who were competent to take necessary action on behalf of the owners. The impugned order dated 8‑11‑67 drawing up proceeding under section 145, Cr. P. C. was passed at the instance of Md. Jainuddin Sardar who claimed to be in possession of the disputed land as Bargadar of the owners. Since the possession of a Bargadar is the possession of the master himself, it cannot be said that the learned Magistrate had no jurisdiction to take action on the application of the Bargadar. As regards the order dated 27‑11‑68 drawing up another such proceeding, at the instance of Asit Kumar Raha who claimed to be the constituted attorney of the owners of the land, reference may be made to a decision of a Full Bench of. the Calcutta High Court in the case of Dhondhai Singh v. Follet (I L R 31 Cal.48) where it was held that a Magistrate is competent to exercise jurisdiction d under section 145, Cr. P. C. at the instance of a person who claims to be in possession of the disputed land as agent or manager for the owner when the actual owner is not residing within the jurisdiction of the Court. The decision in the case of Peare Lal v. Emperor (A I R 1934 All, 853) cited by Mr. Golam Hafez does not appear to be relevant to the facts and circumstances of this case. In the aforesaid case it was found that the real dispute was between the master of the complainant and other persons and since the case proceeded between the agents and no notice was sent to the master the order under section 145, Cr. P. C. was set aside. In this case there is no dispute that the alleged master Sudhir Kumar Chakraborty and others are no longer residing within the jurisdiction of this Court and consequently the proceeding started in their absence by their constituted attorney cannot be said to be bad in law.

It was next contended on behalf of the petitioner that the learned Magistrate committed an illegality in drawing up proceed ing or, 8‑11‑67 after discarding the report of the officer‑in‑charge of Assasuni Police Station who being asked to inquire and report submitted a report which was in favour of the petitioner on the question of possession of the disputed land. A Police report is not a sacrosanct document which a Magistrate is bound to accept while exercising jurisdiction under section 145 of the Code of Criminal Procedure. A report is, no doubt, require to provide informations as to the existence or otherwise of conditions necessary to exercise jurisdiction and the Magistrate should duly take it into consideration, but the foundation for exercise of jurisdiction rests not upon police report but upon the existence of apprehension of breach of peace concerning possession of immovable property and the Magistrate can satisfy himself or the point on material placed before him. It appears that the order dated 8‑11‑67 was passed after duly considering the materials on record including the police report and upon a finding thereon that there was apprehension of breach of peace. It. may be states: that the police report itself shows that there were disputes between the parties concerning the possession of the land in question, it, therefore, appears that the learned Magistrate had jurisdiction to draw up proceeding under section ‑145, Cr. P. C. on the basis of the existence of apprehension of breach of peace concerning the possession of the disputed land.

As regards the proceeding drawn up at the instance of Asit Kumar Raha on 27‑11‑68 it was contended that since this was done after a Rule was issued in Petition No. 336 by this Court it was illegal. It is true that upon a petition filed by the second party‑petitioner Rule was issued on 6‑5‑68 directing stay of operation of the order dated 8‑11‑67 and the second proceeding ova drawn up on 27‑11‑68 at the instance of Asit Kumar Raha concering land. The Rule debarred the Magistrate from taking further action in the proceeding started at the instance of Md. Jainuddin Sardar but did not debar the Mug3,tr;rte from taking fresh action through another proceeding if circumstances so demanded. The petition filed by Asit Kumar Raha on 27‑11‑68 disclosed fresh apprehension of breach of peace concerning the possession of the land and in the circumstances the order dated 27‑11‑68 drawing up proceeding under section 145, Cr. P. C. cannot be said to be bad in law.

In the circumstances I do not see any illegality in any of the impugned orders dated 8‑11‑67 and 27‑11‑68 and the two petition; must fail. It is now for the petitioner to adduce evidences it ' support of his alleged possession of the disputed land.

Both the Rules are discharged.

Rules discharged.

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