Find a Lawyer

Criminal Reference No. 301 of 1959, decided on 4th April 1961.

(a) Criminal Procedure Code (V of 1898)-

-S. 145 (1)‑-Mere information regarding apprehension of breach of peace not enough‑Magistrate can proceed under S. 14J (1), if satisfied that information is true.

It is not sufficient that a Magistrate should have received information that a breach of the peace is apprehended, it being further imperative that he should be satisfied that the informa tion is true. If it can be ascertained from the material on the record that the Magistrate was so satisfied, the mere absence of a preliminary order would, no doubt, not render his subsequent proceedings illegal, but the difficulty is that unless a preliminary order is recorded stating that the Magistrate is satisfied of the existence of an apprehension of a breach of the peace and giving his reasons for being so satisfied, it is not easy for a superior Court to discover whether this essential condition for the assumption of jurisdiction has been fulfilled. The mere fact that a Magistrate issues notice to the parties to attend his Court and put in written statements by no means necessarily implies recognition on his part that his jurisdiction depends on the existence of a danger of a breach of the peace.

Mohan Lal v. Mst. Morni A I R 1933 Pesh. 88; State v. Muhammad Azam P L D 1960 Pesh. 47 ; Abdul Rahman v Emperor A I R 1927 P C 44 ; Ch. Abdul Aziz Khan v. Badri A I R 1948 Oudh 184 and Kapur Chand v. Surai Prasad A I R 1933 All. 264 ref.

(b) Criminal Procedure Code (V of 1898)--

-S. 145 (4) and (6)‑Party dispossessed more than two months before date of order Cannot be put back into possession by Magistrate.

Where a dispossessed person seeks relief under the pro visions of section 145, Cr. P. C. and the Magistrate passes a preliminary order under section 145 (1), Cr. P. C. more‑ than two months after such dispossession, but by his final order under section 145 (6) puts him in possession, that final order cannot be deemed to be a valid one merely on the grounds that the Court itself was responsible for this delay, and that a party cannot be penalised for the fault committed by the Court.

Chinchilada Krishanam Raju v. Chintala Swami Naidu A I R 1927 Mail. 816 (1) ; Ganga Bux Singh v. Sukhdin A I R 1959 All. 141 and Debendra Chandra Sarkar v. Khodaram Sangma P L D 1951 Dacca 59 ref.

K. Abdul Wahab for petitioner

Muhammad All, A. A. G. for the State.

Khawaja Muhammad for Respondent No. 1.

Date of hearing: 14th March 1961.

ORTCHESON, J.‑--

The facts leading up to this Criminal Refer ence as given in. the order of the learned Sessions Judge, Peshawar, dated the 1st of September 1959, are that on the 20th of January 1958 one Mat. Kubra Begum lodged a complaint in the Court of a Magistrate of the First Class, Peshawar, alleging that she was in possession as owner of half of house No. 2866, situated in Mohallah Mohtasiban, Peshawar City, and of the other portion on behalf of Abdul Karim, brother of her deceased husband. She stated that during her absence in Karachi, where her husband had died, her relative, Mst. Khaista Begum, was living in the house as caretaker. On her return to Peshawar she discovered that Gul Muhammad, Abdul Aziz and Mst Muhammadi Begum (respondents 1 to 3) had taken forcible possession of one of the kothas in the house in question. In the complaint it is stated that a danger of a breach of the peace existed and the complainant prayed that possession of the kotha be restored to her.

2. The above complaint was sent the same day by the Ilaqa Magistrate to the S. H. O. of the thana within the juris diction of which the house was situated, who merely reported that as the house was believed to be the joint property of the parties no cognizable offence appeared to have been committed. The Magistrate then sent for the parties and on the 12th of March 1958 served a notice upon them under section 145, Cr. P. C. Written statements were submitted and at the request of the complainant the case was transferred to the Court of Mr. Muhibur Rehman Khan Kayani who, after taking evidence ordered on the 28th of May 1959 that Mst. Kubra Begum be restored to possession under subsection (6) of section 145 Cr. P. C. on the ground that she had‑ been in the possession of the disputed kotha within two months of the order passed by the Ilaqa Magistrate (it is not clear whether the order referred to is that of the 12th of March 1958 serving the parties with notice or the, earlier order, dated the 20th of January 1958 marking the case to the S. H O.). It was further directed that if the respondents claimed any legal right in the kothin dispute they should establish it in a Civil Court and have the complainant evicted after adjudication.

3. The proceedings were referred to this Court by the learned Sessions Judge on the main ground that the Magistrate had passed no preliminary order as required by section 145 (1) of the Criminal Procedure Code, and that even if the order dated the 12th of March 1958, though in fact a notice, be considered as a preliminary order, Mst. Kubra Begum had been dispossessed several days before the 3rd of January 1958, on which date Mst. Kubra Begum had made a report (Ex. D. A.) to the local police. She had, therefore been dispossessed more than two months before the, order, dated the 12th of March 1958, the Magistrate having consequently no jurisdiction to direct that possession be restored to her. The order was, therefore, in the opinion of the learned Sessions Judge illegal and the case was forwarded to this Court with the recommendation that it be reversed.

4. The first question for determination is that of the effect of the failure of the learned Magistrate to record the preliminary order required by subsection (1) of section 145 Cr. P. C. On this point there is a conflict of judicial opinion. In a number of cases, for example Mohan Lal v. Mst. Morn; (A I R 1933 Pesh. 88) and State. Muhammad Azam (P L D 1960 Pesh. 47) it has been held that the omission to record the preliminary order, however objectionable, is not sufficient to vitiate the proceedings under section 145, Cr. P. C., the defect being curable under section 537, Cr. P. C. In the former case reference is made to Abdul Rahman v. Emperor (AIR 1927 P C 44) in which their Lordships of the Privy Council laid down that omission to comply with some of the provisions of the Criminal Procedure Code, even though those provisions are mandatory, is a mere omission or irregularity curable by section 537, and that unless prejudice is proved, a Court of revision would not and should not interfere. The learned Judges pointed out that since the pronouncement of the above ruling of the Privy Council the current of decision in India had changed, it having been held in various subsequent rulings that the omission to comply with the provisions of clause (1) of section 145, Cr. P. C. is not sufficient to set aside the final order until and unless prejudice is established.

5. With the greatest respect I am in full agreement with the dictum of their Lordships of the Privy Council, but in my opinion a clear distinction must be drawn between those cases in which the Court, even though disregarding some mandatory provisions of the Criminal Procedure Code, has jurisdiction to deal with the proceedings in the course of which the irregu larity is committed, and cases where the disregard of a provision of the Code cuts at the very root of the Court's jurisdiction. The position with regard to section 145, Cr. P. C. has been summed up by Kidwai, J. in Ch. Abdul Aziz Khan v. Badri (A I R 1948 Oudh 184) as follows : ‑

" Normally, criminal Courts cannot deal with cases of possession of immovable property. Section 145 Cr. P. C. however, gives them power to deal even with that class of cases but the condition precedent is that the Court should be satisfied that there exists an apprehension of a breach of the peace. It is only when there is an apprehension of a breach of the peace that the matter comes within the juris diction of the criminal Courts, otherwise the matter is one of a civil nature. Before, therefore, a criminal Court can be said to have any jurisdiction with regard to a case relating to the possession of immovable property, it must indicate that it is satisfied that an apprehension of a breach of the peace exists. That is why an order under section 145, clause (1), is to be passed before any further proceedings are taken. When the Court fails to pass such an order at any stage of the proceedings and there is not a sufficient material on the record on the basis of which such an order can be passed it cannot be held that the criminal Court had jurisdiction to take proceedings under section 145; Cr. P. C."

I respectfully agree with the above statement of the position, but the words I have italicized are of great significance. They imply that even if a preliminary order has not been recorded a criminal Court is not deprived of jurisdiction to pees an order under section 145 Cr. P. C. if it can be gathered from other material on the record that a danger of a breach of the peace existed. In Mohan Lal's case, above referred to, the learned Judges cited certain observations of a Full Bench of the Allahabad High Court in Kapur Chand v. Suraj Prasad (A I R 1933 All. 264) in support of their view that the omission to record a preliminary order is in all cases curable by section 537. Cr. P.C., but with the greatest respect, it appears to me that they have not fully appreciated the significance of the observations in question, which runs :‑-

"Now if we read section 145 in the light afforded by the sections quoted above, we see that if the Magistrate is satisfied from police report or other information that a dispute likely to cause breach of the peace exists, he is seized of jurisdiction to take action and he is empowered by the Code to act in particular way. If this view be correct, the juris diction of the Magistrate arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magis trate does not depend on how he proceeds. There are two things one in the authority conferred on him and the other is how he is to act. If he has jurisdiction he is not deprived of jurisdiction merely because his procedure is erroneous or defective. If this view be right, the omission on the part of the Magistrate to follow certain directions contained in the Code, although some of those directions may be more important than others; cannot be said to deprive him of jurisdiction."

6. The above remarks, in my opinion, clearly imply that it is not sufficient that a Magistrate should have received information that a breach of the peace is apprehended, it being further imperative that he should be satisfied that the information is true. If it can be ascertained from the material on the record that the Magistrate was so satisfied, the mere absence of a preliminary order would, no doubt, not render his subsequent proceedings illegal, but the difficulty is that unless a preliminary order is recorded stating that the Magistrate is satisfied of the existence of an apprehension of a breach of the peace and giving his reasons for being so satisfied, it is not easy for a superior Court to discover whether this essential condition for the assumption of jurisdiction has been fulfilled. The mere fact that a Magistrate issues notice to the parties to attend lift Court and put in written statement by no means necessarily implies recognition on his part that his jurisdiction depends on the existence of a danger of a breach of the peace. In the case now before us there is nothing to indicate clearly that when the Ilaqa Magistrate served notice on the parties on the 12th of March 1958 he apprehended a breach of the peace, and I am consequently inclined to the view that the whole of the subsequent proceedings are without jurisdiction.

7. Even if it be assumed, however, that the Ilaqa Magis trate had jurisdiction to issue notice, the final order of Mr. Muhibur Rehman Kayani is illegal on the ground given by the learned Sessions Judge, namely, that lust. Kubra Begum had been dispossessed more than two months before the passing of the order, dated 12th of March 1958. It is true that in certain cases, for example Chinchilada Krishanam Raju v. Chintala Sawami Niadu (A I R 1927 Mad. 816 (1)) it has been held that where a Magistrate has delayed in taking action under section 145, Cr. P. C. after receipt of a complaint, with the result that more than two months have elapsed before the Court finally makes up its mind to issue a preliminary order, a party dispossessed within two months proceeding the filing of the complaint can be replaced in possession, but wish the greatest respect I am unable to subscribe to such a view the correct position, in my Opinion, being as laid down in Ganga Bux Singh v. Sukhdin (A I R 1959 All. 141) in which it was held by a Full Bench of the Allahabad High Court (Lucknow) that where a dispossessed person seeks relief under the provisions of section 145, Cr. P. C. and the Magistrate passes a preliminary order under section 145 (1) Cr. P. C. more than two months after such dispossession, but by this final order under section 145, (6) puts him in possession, that final order cannot be deemed to be a valid c one merely on the grounds that the Court itself were responsible for this delay, and that a party cannot be penalised for the fault committed by the Court. The same view was taken in Debendra Chandra Sarkar v. Khodaram Sangma (P L D 1951 Dacca 59) in which Ellis, J. held that in construing the proviso to section 145 (4) Cr. P. C. the Court must follow the wording of the said proviso literally, and that if the party is found to have been forcibly and wrongfully dispossessed on a date outside two months next before the date of the order, the proceedings cannot be maintained.

8. For the above reasons I hold that since even if the order, dated the 12th of March 1958 be treated as a preliminary order within the meaning of section 145 (1), Cr. P. C., as p Mst. Kubra Begum had been dispossessed more than two months before the date of that order she could not legally be replaced in possession. The recommendation of the learned Sessions Judge is accordingly accepted and the order of Mr. Muhibur Rehman Kayani, dated the 28th of may 1959 set aside.

HABIBULLAH, J.-------I agree.

K.M.A. Reference answered.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.