Ram Lochan Mishra And Ors. vs Jibeshwar Jha And Anr. on 1/9/1976

JUDGMENT

Madan Mohan Prasad, J.

1. This is an application for the purpose of quashing an order by which a proceeding Under Section 144 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') has been converted into one Under Section 145 thereof.

2. It appears that one Bishnu Jha, a member of the Executive Committee of the Mukhiya of Gram Panchayat Raj Keoti made a report to the Sarpanch of an apprehension, of breach of peace arising out of a dispute in respect of certain lands between the petitioners and the opposite party, as a result of which the Sarpanch made an enquiry on the 11th of February, 1976, and finding that there was apprehension of breach of peace, acting Under Section 64 of the Bihar Panchayat Raj Act, hereinafter referred to as the Act, directed the petitioners to abstain from going over the disputed lands until the 25th of February, 1976 on which date they were asked to appear before the Subdivisional Magistrate. The Sarpanch made a report to the Magistrate stating the aforesaid facts and further recommending that a proceeding Under Section 144 of the Code be drawn up. The Subdivisional Magistrate, thereupon, on the 25th of February, 1976 started a proceeding Under Section 144, Subsequently by the impugned order he converted the proceeding into one Under Section 145 of the Code.

3. Learned Counsel for the petitioners has contended as follows : Firstly, that the proceeding Under Section 144 itself was illegal inasmuch as the Magistrate had to pass an order either confirming the order passed by the Sarpanch or discharging the notice in view of Sub-section (2) of Section 64 of the Act and he could not have, therefore, passed any third kind of an order, namely, starting a proceeding Under Section 144 of the Code, Secondly, that a title suit bearing No. 8 of 1976 in the court of the Subordinate Judge was pending in respect of the same property and for that reason the impugned order is bad in law. Thirdly, that in the present case, the person contesting and who alone had filed written statement on behalf of the second party, is an agent of one Mahanth Shyam Narain Das who has not filed any separate written statement of his own, and in view of the law that an agent cannot be declared to be in possession on behalf of the master and the proceeding, in the absence of the principal, being bad in law, the present order cannot be sustained. Fourthly, that there being already a preventive order passed by the Sarpanch Under Section 64 of the Act, it was not open to the Magistrate to take action Under Section 144 of the Code which, in effect, is no different from the order Under Section 64 of the Act. Lastly, it has been urged that the report which was the basis of the order Under Section 64 of the Act ceased to have any validity after the expiry of thirty days, the duration during which an order Under Section 64 of the Act is effective, and could not form the basis of the present order Under Section 145 (1) of the Code.

4. I would take up the first point first. Section 64 of the Act is as follows :

64. Criminal powers of Sarpanch.-- (1) Whenever the Sarpanch has reason to believe that a breach of the peace or disturbance of the public tranquillity is imminent and immediate prevention or speedy remedy is desirable, he may, by a written order stating the material facts of the case and served in the prescribed manner, direct any person to abstain from a certain act or to take action with respect to a certain property in his possession or his management.

(2) As soon as the Sarpanch has issued an order under Sub-section (1) he shall submit the proceedings of the case to the Subdivisional Magistrate who may either confirm the order

or discharge the notice after hearing the parties to the dispute, if they so desire.

(3) An order passed under Sub-section (1) shall remain in force for thirty days.

On the basis of Sub-section (2) and a decision of a learned Single Judge B. P. Jha J. in Madan Singh v. Ram Gopal 1974 BBCJ 70 it has been urged that the Magistrate could not pass the order Under Section 144 ; all that he could do was either to confirm the order of the Sarpanch or to discharge the notice. It is true that Section 64 of the Act does not enable the Magistrate to whom the proceedings have been submitted to do anything acting thereunder other than what is mentioned in Sub-section (2) of the aforesaid section. The question, however, arises as to whether the Magistrate purports to act, while starting a proceeding Under Section 144 or 145, on the basis of the materials before him in the proceedings, to act Under Section 64 of the Act or within his independent jurisdiction conferred by Section 144 or 145 of the Code, In the aforesaid case of Madan Singh decided by B. P. Jha, J. the proceeding Under Section 64 itself was said to have been converted into a proceeding Under Section 145 of the Code. The learned Judge held that he could not do that Under Section 64 (2) of the Act and that he could not alter that order which he did when he directed that the proceeding be converted into one Under Section 145 of the Code. On this ground the learned Judge quashed the order. The facts of that case do not appear from the judgment of the learned Judge except that the proceedings had been converted. Having looked into the records of that case, I find that it was on the 24th of August, 1972 that the Sarpanch had passed the order Under Section 64 of the Act and that it was on the 25th of September, 1972 that the proceedings had been converted into one Under Section 145 of the Code. Obviously, and it was so, stated in the petition for revision before the learned Judge, the order of the Sarpanch had lost its force with the expiry of thirty days. It appears that it, escaped the notice of the learned Judge, that the proceedings Under Section 64 had come to an end and the order dated 25th September, 1972, therefore, could not in effect be treated to be a conversion of the proceedings which had ceased to exist. In that view of the matter, it could only be an independent order Under Section 145(1) of the Code. I may add another reason to it. It is well known that there is no provision in the Code for converting a proceeding Under Section 144 into one Under Section 145. There is no provision in the Act either of converting a proceeding Under Section 64 of the Act into one Under Section 145 of the Code. These orders of conversion must, therefore, in substance be deemed to be independent orders passed Under Section 145(1) of the Code. It has been held to be so in a recent Division Bench decision of this Court in Raja Lal Singh v. Ram Prasad Singh 1975 BBCJ 263 : 1975 Cri LJ 1268. A similar Bench decision is to be found in another ease of this Court in Mt. Bimla Devi v. Shobhanath Mahmarik 1975 B. B. C. J. 248. The question as to whether the order converting the proceeding into one Under Section 145 of the Code could have been treated to be an independent order Under Section 145(1) has not been considered by the learned Judge in the case of Madan Singh. It seems to me further that there is no warrant for the proposition that the order converting the proceeding into one Under Section 145 of the Code can be said to be an order purporting to be Under Section 64 of the Act. Obviously it could not be an order Under Section 64, and obviously again, the Magistrate instead of passing an order Under Section 64 by way of confirming or vacating the order, took recourse to his independent authority Under Section 145 of the Code. 1 am, therefore, unable to accept the law laid down in the case of Madan Singh (Supra) to be correct, in so far as it lays down that a Magistrate has no jurisdiction to pass an order Under Section 145 of the Code or the basis of the materials which came to his notice contained in the proceedings Under Section 64 of the Act.

5. Coming to the facts of the present case, in this connection it would appear that the Sarpanch made some sort of a limited order inasmuch as he asked the parties to abstain from going to the land but he limited this for the period until the 25th of February, 1976 when the parties were asked to appear before the Magistrate, He further recommended to the Subdivisional Magistrate that the latter may start a proceeding Under Section 144 of the Code. It appears, that he had merely sent the report containing the aforesaid facts and no records. It is thus obvious that the Sarpanch did not do all that he was expected to do Under Section 64 of the Act. namely to submit the proceedings for the purpose of the Magistrate acting under Sub-section (2) of Section 64 of the Act. It also appears that the Magistrate instead of acting under Sub-section (2) drew up a proceeding Under Section 144 of the Code as recommended basing his order on the information con-gained in the report of the Sarpanch himself. There was, thus, no doubt an omission on the part of the Sarpanch as well as the Magistrate to act under Sub-section (2). The failure to act under that sub-section would not, however, affect the order Under Section 144 of the Code passed independently of Section 64 of the Act, even though on the materials submitted by the Sarpanch. The order has to be judged in the aforesaid circumstances as an independent order in exercise of the jurisdiction vested in the Magistrate by law. It cannot, therefore, be said that the order Under Section 144 of the Code passed by the Magistrate on that day was without jurisdiction or illegal. I will come to the question hereafter as to whether it was improper in the circumstances of the case.

6. In the present case the order under challenge is the one passed Under Section 145(1) of the Code. Thus again this order dated the 22nd of April, 1976 converting the proceeding into one Under Section 145 has to be judged as an independent order passed under that provision. The validity or invalidity of the prior proceeding Under Section 144 is of no avail, I have already referred to the Bench decision of this Court to this effect in the case of Raja Lal Singh 1975 Cri LJ 1268 (Pat) (Supra). It appears that after the proceeding Under Section 144 had been started the parties filed their written statements., they were heard and ultimately the impugned order was passed. Thus, at the date of the passing of the order Under Section 145 the Magistrate had before him further materials on the basis of which he was satisfied with regard to apprehension of breach of peace and bona fide dispute and started, the present proceeding. The fact that he passed no order Under Section 64(2) of the Act or even assuming that the proceeding Under Section 144 was bad in law, the impugned order Under Section 145(1) cannot be deemed to be bad in law only on that account or even improper. In any view of the matter, therefore, the first point raised on behalf of the petitioners fails.

7. The second point raised is untenable on facts of this case. It has been said that title suit No. 8 of 1976 in the court of the Subordinate Judge is in respect of the same property. It has, however, been rightly pointed out on behalf of the opposite party that the title suit relates to the question as to whether the property is the property of a public trust or a private trust. The possession of the opposite party in that case is admitted and the prayer is for removing the Mahanth because of mismanagement of the trust property on the ground that it is a public trust. It is obvious, therefore, that the question of possession as between the parties to the present dispute is not the question agitated in that title suit. The impugned order cannot, therefore, be said to be bad or improper on that ground.

8. I will next take up the fourth point, namely, that there being already an order Under Section 64 of the Act by the Sarpanch, it was improper for the Magistrate to start a proceeding Under Section 144 of the Code which, in substance has the same effect as the order Under Section 64. Prima facie, the point appears to be of substance inasmuch as one would say that if the same purpose is served by one proceeding as by another there could not be two parallel proceedings at the same time with regard to the same person and subject- matter The point of distinction between the effect of Section 64 of the Act and Section 144 of the Code cannot however, be ignored and that is, firstly, that the order Under Section 64 has its effect only for a period of thirty days unless earlier rescinded by the Magistrate under Sub-section (2) of Section 64, An order Under Section 144 of the Code is, however, effective for a period of two months, thus obviously for a longer duration. Besides, if the State Government so considers, the effect of such an order may be prolonged up to six months. No such thing can be done in respect of an order Under Section 64 of the Act, It appears to me that the intention of the legislature while enacting Section 64 of the Act was to vest the Sarpanch with power similar, though in limited way, to the one contained in Section 144 so as to be able to meet an emergent situation. The Sarpanch unlike the Magistrate acting Under Section 144 of the Code, has not been given the final say in the matter. All that he is supposed to do is to issue the order and lay the proceedings before the Magistrate. He is not called upon by Section 64 of the Act to do anything more than that ; whereas Under Section 144 of the Code the order of the Magistrate subsists until he himself suo motu or on application of the parties and after, hearing them, chooses to rescind the order. It cannot thus be said that the Magistrate is not to take into account, when he finds a case of apprehension of breach of peace, that he can pass an order which will have effect over a longer period. If, in that view of the matter, he chooses to proceed Under Section 144, is difficult to come to the conclusion that it should be deemed to be an improper exercise of jurisdiction on his part. I do not, therefore, find substance even in this contention.

9. To take up the last contention that the report of the Sarpanch could not be deemed to be good material after the expiry of thirty days, it may be stated that the question does not arise in the present case because when he acted Under Section 144 of the Code he acted only within three days of the aforesaid report and while acting Under Section 145(1) of the Code he had fresh materials before him in the shape of written statements of the parties apart from the report of the Sarpanch. I must, however, state that no authority has been cited whatsoever to support the contention, even though it does not apply to the case on general principles, that the report of the Sarpanch, once thirty days had expired, had ceased to be a good material. Be that as it may, the contention in the circumstances of the present case, is without any foundation.

10. I would now turn to the third point mentioned above, namely, that the person contesting the present proceeding on behalf of the second party was merely an agent : of the Mahanth and he was not a proper party and no declaration of possession could be made in his favour as he claimed to be in possession on behalf of his principal. Learned Counsel has relied in this connection on a decision of Untwalia J. (as he then was) in Dudh Nath Singh v. Sarju Singh 1969 Pat LJR 153 : 1970 Cri LJ 722. In that case the proprietor of the land was not a party to the proceeding and the person who was a party and was contesting was the employee, The learned Judge held as follows :

In my opinion the proceeding in absence of Shreemati Kusurnlata Agarwala is misconceived and suffers from an infirmity of the kind, which would not justify the conclusion of the proceeding in favour of any party. Nowhere the petitioner in any sense claimed to be in actual physical possession of the disputed land. He was, therefore, on the facts and in the circumstances of this case, not a party concerned in the dispute in question within the meaning of Section 145 of the Code. The party concerned on the case of the petitioner, as stated in the order of the learned Magistrate, was shreemati Kusumlata Agarwala.

The learned Judge went on to say that the preliminary proceeding against the petitioner employee was defective and illegal. The reason given therefor is that supposing the Magistrate came to the conclusion that the property was in the physical possession of the proprietor, the employee could not be declared in possession of such property nor could the proprietor be so declared as she was not a party to the proceeding. Firstly, I must state that the decision aforesaid is distinguishable from the facts of the present case inasmuch as in the instant case the principal, namely, the Mahanth, has been made a party, he has appeared and a written statement purporting to be on behalf of the second party (which includes the Mahanth) was filed. The contingency envisaged by Untwalia J. is not likely to arise in the present case. Apart from that, however, with profound respect for the learned Judge, I am unable to agree with the decision on law that in the absence of the principal, the agent cannot be declared to be in possession on behalf of the principal. The learned Judge has relied upon two decisions of the Calcutta High Court, namely, (i) in Behary Lall Trigunait v, Darby (1894) ILR 21 Cal 915 and (ii) in Brown v, Prithiraj Mandal (1898) ILR 25 Cal 423. However, another decision of the same court in Dhondhai Singh v. Follet (1904) ILR 31 Cal 48 (FB) has been referred to, where it was held that the Magistrate has jurisdiction Under Section 145 of the Code to make an order in favour of a person who claims to be in possession of the disputed land as agent to or manager for the proprietors when the actual proprietors are not residents within the appellate jurisdiction of the High Court. Untwalia, J. said that this may be so under certain circumstances but,

to extend this principle to a mere servant, agent or an employee and call him a person in actual physical possession or a party concerned within the meaning of Section 145 of the Code when the principal or the master is himself or herself, as the case may be, is the resident of the same place is to obliterate and brush aside a very salient principle of law....

With very great respect I must observe that even though the point referred to the Full Bench in Dhondhai Singh's case related to the case of a principal living outside the jurisdiction of the court, the decision of the case does not rest upon the point that the master lived outside the territorial jurisdiction of the court but on the general principle as to whether an agent can be deemed to represent the master and be considered a 'person concerned'. It must be noted in this connection that the Full Bench expressed its dissent with the decision to the contrary given in Jhabu Singh's case and said--

No doubt, the case of Jhabu Singh v. Rutherford (1903) 7 Cal W. N. 208 is an authority to the contrary, but, speaking with every respect to the view there expressed, I think on a careful consideration of the language of the section, it is difficult to sustain that view.

The facts in Jhabu Singh's case were similar to those of Behary Lall Trigunait's case and Brown's case ; inasmuch as the possession of the manager on behalf of the firm had been declared. In effect, therefore, the Full Bench in Dhondhai Singh's case differed with this principle laid down in Jhabu Singh's case, even though they distinguished the other two cases of Behary Lall Trigunait and Brown upon which reliance has been placed by Untwalia, J.

11. There is one more decision of the Full Bench of the Calcutta High Court which also does not appear to have been placed before Untwalia, J. and that is the decision in the case of Krishna Kamihi v. Abdul Jubbar (1903) ILR 30 Cal 155 (FB). In that case the objection raised was that the zainindar under whom one of the parties and his co-sharer claimed possession had not been made party. The question thus was whether the proceeding was without jurisdiction in the absence of the landlord if he was a necessary party. The meaning of the words 'parties concerned in such dispute was discussed at length. In the case of Ram Chandra Das v. Manohur Roy (1894) ILR 21 Cal 29 it had been held that the aforesaid words do not necessarily mean only the persons who were disputing but included the persons who were interested in the dispute i. e. persons who claimed a right to the property which is in dispute. This interpretation was accepted in several other cases of that court ; e. g. Protap Narain Singh v. Rajendra Narain Singh (1897) ILR 24 Cal 55 (FB). The learned Judges constituting the Division Bench who heard the case of Krishna Kamini were inclined to dissent from the interpretation given in Ram Chandra Das's case ; accordingly, they referred the matter to the Full Bench. They expressed their view that the words mean "not the parties concerned in the dispute because they are interested in the possession of the particular land etc, but the parties concerned in the dispute because they are likely to cause a breach of the peace". While delivering his judgment Prinsep C. J. said "the object in view is to prevent a breach of the peace by determining the actual possession of land, etc, in dispute between certain parties, who are likely on this account to break the peace. The court has, however, recognized that a determination of actual possession between the disputing parties might affect the rights of absent parties really in possession, and that such persons are entitled to be heard. That seems to me to be going beyond the letter of the law and also the object in view."

Hill, J. with whom Prinsep, C. J. entirely agreed, said--.

am unable therefore to agree in the view which has been taken in certain cases that all parties interested in or claiming a right to, the property in dispute, are entitled to be or should be made, parties to the proceeding.

In this case it was held that the proceeding Under Section 145 was not without jurisdiction because some person claiming possession in some way of the lands, had not been made a party, he not being one of the parties in the dispute likely to cause a breach of the peace. The ratio of this decision, therefore, is that a person claiming possession is to is made a party only when there is likelihood of breach of peace on his part. The agent or servant of a principal may be the person immediately in possession and thus the person likely to be a party to the apprehension of breach of peace. It may be that the proprietor or the principal personally may not be a likely party to the breach of peace. In such a case, according to this decision, it would not be necessary to implead him. And further that the proceeding would not be without jurisdiction in the absence of such a party. It would thus appear that the later decisions of the Calcutta High Court itself have taken a view different from the one in the case of Behary Lall Trigunait and Brown's case upon which reliance was placed by Untwalia J.

12. It appears, further, that the learned Judge did not notice any of the decisions of this Court including a Bench decision holding a view contrary to that which he has taken relying upon the Calcutta decisions, This is to be found in Langer Mahton v. Radha Mahtqn AIR 1954 Pat 135 : 1954 Cri LJ 209. In that case it was held that the possession of an agent or a guardian is contemplated by Section 145 of the Code and a Magistrate, therefore, is entitled to declare such a person to be in possession on behalf of the principal. It may be said that that was a case where the party concerned was claiming to be in possession as the guardian of a minor daughter-in-law. In any case, the character of such a person is nothing but that of an agent. The decision referred to by Untwalia, J. in (1894) ILR 21 Gal 915 (supra) was also considered by the Division Bench in that case and so was decision in (1904) ILR 31 Cal 48 (FB) and the learned Judges have quoted from the decision of XXXI Calcutta wherein the learned Judges constituting the Full Bench expressed their difference with the view taken in the case of Jhabu Singh v. G. B. Rutherford (1903) 7 Cal WN 208 where a contrary view was expressed. There are other Patna Cases on the point which have been considered by the Division Bench. It is needless for me to go further into this matter at length. It is obvious, thus, that the decision given by Untwalia, J was without consideration of the law laid down by the Division Bench of this Court. Further, I would like to point out that there are several other decisions of learned Single Judges of this Court on this point. The first is the decision of G. N. Prasad, J. in Lakashmi Dusadh v. Sayeed Moizuddin Ahmad (Criminal Revn. No. 2104 of 1966 decided on 9-4-1969 (Pat)) where a Karinda was claiming to be in possession on behalf of his master, another was the case of Abdul Bari v. V. Jairam 1972 BLJR 606 decided by B. N. Jha. Abdul Bari's case the learned fudge has noticed the decision of Untwalia, J. but did not follow it for the reasons given by him. I had the occas-sion to consider the same question in the case of Tribeni Narain Singh v. Harbans Narayan Singh (Criminal Revn. No. 93 of 1971 disposed of on 19-7-1976 (Pat)) wherein I followed the decision of B. N. Jha, J. In view of the Bench decision of this Court, the decision of Untwalia, J. in the aforesaid case cannot, with very great respect, be said to be laying down good law. Speaking for myself I fail to understand as to why an agent in actual possession of the land on behalf of his master, cannot be deemed to be a person concerned within the meaning of Section 145 irrespective of the fact as to whether his master is residing near at hand or at a distant place, within or beyond the jurisdiction of the court, The words "person concerned" in Section 145 must be given a liberal and wide interpretation. In the case of an agent, the Magistrate can certainly declare that he is in possession on behalf of his master. The mere fact the title rests with the master and not with the agent does not appear to me to be a cogent reason for coming to the conclusion that in the absence of the master the proceeding must be held to be defective. With very great respect I agree with the views expressed by B. N. Jha, J. that the question of non-Joinder or misjoinder of parties is not question which goes to the root of the jurisdiction. I am, therefore, unable to agree that if the principal has not been impleaded and his agent alone has been impleaded in the proceeding Under Section 145 of the Code the proceeding must fail on account of such non-joinder. Authority for the proposition, would be found in AIR 1954 Pat 135 (supra) itself. To add to it, it was so held by another learned judge of this Court in the case of Nandan Singh v. Siaram Singh AIR 1926 Fat 67. Thus the reason that in the present case the principal is also a party, the decision in the case of Dudh Nath Singh 1970 Cri LJ 722 (Pat) (Supra) by Untwalia, J. is of no avail. In so far as it lays down the law in general, it is of no avail either for the reasons already mentioned by me earlier. Having come to the conclusion that the agent claiming possession on behalf of his master in the present case was a proper party, the proceeding cannot fail on that account. The point raised by learned Counsel, accordingly, fails.

13. 1 would, however, point out that on the facts of this case the argument which I have just now disposed of is not available to the petitioner. I have already said earlier, that in the present case the Mahanth is a party and a written statement was filed on behalf of the second party as a whole. What has been pointed out in this connection is that the written statement was filed along with the vakalatnama of the person who was the agent of the Mahanth and the Mahanth himself had filed a vakalatnama through another lawyer, On this basis it was urged that the written statement in the case could not be deemed to be the written statement of the Mahanth himself. Assuming, however, that the Mahanth did not file written statement, his agent claimed that the Mahanth was in possession through him and the Magistrate could certainly come to the conclusion on the basis of the written statement of the agent alone that the Mahanth was in possession, In that view of the matter the question raised with regard to the agent does not arise, In fairness, however, to the learned advocate who raised the contentions, I have discussed both the points and have given my conclusions in that regard.

14. No other point was raised. All contentions raised having been negatived, this application must fail. It is, accordingly, dismissed.

Shivanugrah Narain, J.

15. I agree that the application must be dismissed. As, however, we are differing from the view expressed by brother B. P. Jha, J. in the case of Madan Singh v. Ram Gopal, 1974 BBCJ 70, I wish to add a few words of my own. In that case the learned Subdivisional Magistrate, as appears from the report, passed an order purporting to convert the proceeding Under Section 64 of the Bihar Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act) into one Under Section 145 of the Code of Criminal Procedure (for brevity 'the Code'). Brother B. P, Jha J. observed :

there is no such power vested in the Subdivisional Magistrate. The power vested under Sub-section (2) of Section 64 of the Act is that the Subdivisional Magistrate may, either confirm the order or discharge an order after hearing the parties to the dispute. He cannot alter the order. In the present case he altered the order and directed that the proceeding be converted into one Under Section 145 of the Criminal Procedure Code. There is no such jurisdiction vested in the Magistrate ....

16. The proposition that under Sub-section (2) of Section 64 of the Act the Subdivisional Magistrate can either confirm the order or discharge the order of the Sarpanch made Under Section 64(1), he cannot alter the order is unexceptional. But it is one thing to say that Under Section 64 of the Act the Subdivisional Magistrate may not pass any other kind of order, it is quite another thing to say that there is no jurisdiction vested in the Subdivisional Magistrate to draw up a proceeding Under Section 145 of the Code on the basis of the proceeding submitted to him by the Sarpanch Under Section 64 of the Act. Section 64 is not the sole repository of the powers of the Subdivisional Magistrate. He has various powers conferred upon him by the Code. It is well-settled that when it is stated that a proceeding is being converted into one Under Section 145 of the Code, it amounts to an order drawing up a proceeding Under Section 145 of the Code, See the Bench decisions of this Court in Mt. Bimla Devi v. Shobhanath Mahmarik 1975 BBCJ 246 and in Raja Lai Singh v. Ram Prasad Singh 1975 BBCJ 263 : 1975 Cri LJ 1268. The order of the Subdivisional Magistrate, therefore, even when he purports to convert the proceeding Under Section 64 of the Act into one, Under Section 145 of the Code is an order passed Under Section 145(1) of the Code, The power of the Subdivisional Magistrate to pass an order Under Section 145(1) is conferred by and derived from Section 145 of the Code and the validity of the order must, therefore necessarily be tested with reference to the provisions of Section 145. If I may say so with respect, this aspect of the question was lost sight of by brother B. P. Jha J. when he held that there was no jurisdiction in the Magistrate to convent the proceeding Under Section 64 of the Act into one Under Section 145 of the Code. Section 64 of the Act confers an additional power on the Subdivisional Magistrate, namely, the power to confirm or discharge the order Under Section 64(1) of the Act. It does Dot detract from, or in any way affect the power which the Shibdivisional Magistrate has Under Section 145 of the Code.

17. Sri Ramjanam Ojha, learned Advocate for the petitioners, attempted to support the decision of brother B. P. Jha, J. by advancing the argument that the learned Subdivisional Magistrate, though he could pass an order Under Section 145(1) of the Code, could not proceed to make such an order on the basis of the facts contained in the proceeding Under Section 64 of the Act. In the first place, in the present case, the learned Magistrate held before him not only the report of the Sarpanch but also the statements showing cause submitted by both the parties to the proceeding Under Section 144 of the Code which he himself had drawn up on the basis of the report of the Sarpanch. In the second place. I find no warrant for the proposition that the Subdivisional Magistrate may not base his satisfaction of the existence of a dispute relating to land and the apprehension of breach of peace arising therefrom on the basis of the proceedings submitted to him Under Section 64 of the Act. As pointed out in the case of Raja Lai Singh 1975 Cri LJ 1268 (Pat) (supra).

Section 145 of the Code does not prescribe any particular mode of satisflction of the Magistrate, If he is satisfied, from whichever source it may be, that there is an apprehension of a breach of the peace in relation to possession over land, he gets jurisdiction to initiate a proceeding Under Section 145.

(at page 268 of the report) 1975 BBCJ : (at p. 1271 of 1975 Cri LJ).

In that case the argument was advanced that as the order Under Section 144 had spent its force and there were no fresh materials before the learned Magistrate on the basis of which he could have been satisfied that there was an apprehension of a breach of the peace relating to the lands in question, there was no material on the basis of which the learned Magistrate would be satisfied about the existence of an apprehension of -a breach of the peace. The argument was negatived. According to Section 145(1), the Magistrate may be satisfied from a police report or other information. The expression 'other information' is very wide and general and not qualified or circumscribed in any way. To accede to the contention would amount to adding words like other than information derived from proceedings Under Section 64 of the Bihar Panchayat Act and for which I find no justification.

18. As regards the decision of Untwalia, J in Dudh Nath Singh v. Sarju Singh 1969 Pat LR 153 : 1970 Cri LJ 722, it is sufficient for the purposes of this case to state that that decision has no application to the facts of this case. The ratio of that decision is that the proprietor on whose behalf an agent is claiming possession in a proceeding Under Section 145 is a necessary party to the proceeding if she is resident within the jurisdiction of the Magistrate and that an order passed without joining the proprietor as a party to the proceeding is illegal. This is clear from the following extract from the judgment in which his Lordship summed up his conclusion :

I do not feel persuaded to accept his view as correct and following the earlier Calcutta decision I hold in this case that the proceeding was bad in absence of Shreemati Kusumlata Agarwala being made a party to the proceeding. If in addition to her the petitioner was made a party to the proceeding, no serious objection could be taken to it but in absence of the only necessary party I must hold that the proceeding is misconceived and illegal.

(at Page 156 of the report) 1969 Pat LJR : (at p. 724 of 1970 Cri LJ).

In the present case, as my learned brother has shown, the proprietor on whose behalf first party No. 2 was claiming possession, was impleaded. It is only urged that he did not appear and file a written statement. The law only requires that necessary party to the proceeding must be impleaded and given an opportunity of being heard. It does not require that the necessary party must actually appear and present his case. Further, in this case, the proceeding has only been initiated. The learned Magistrate has not declared the possession of the agent, first party No. 2 which, according to the decision, may not be regarded as the possession contemplated by Section 145. As this decision is clearly distinguishable, I do not think it necessary to decide whether the law laid down by this decision runs counter to the principle laid down by the Bench decision of this Court in Langer Mahton v. Radha Mahton AIR 1954 Pat 135 and is, therefore, not correct.