Raja Lal Singh And Ors. vs Ram Prasad Singh And Anr. on 28 January, 1975

    Raja Lal Singh And Ors. vs Ram Prasad Singh And Anr. on 28/1/1975

JUDGMENT

   Nagendra Prasad Singh, J.

   1. This application in revision is directed against an order, dated the 28th
March, 1972, passed by the acting Sub-Divisional Magistrate, Siwan, purporting
to convert a proceeding under Section 144 of the Code of Criminal Procedure,
1898 (hereinafter referred to as the "Code") into one under Section 145 of the
Code. The petitioners were members of the second party to the said proceeding.

   2. It appears that, on the 30th October, 1971, the members of the first
party-opposite party filed a petition before the Sub-Divisional Magistrate for
action under Sections 107 and 144 of the Code against the petitioners, alleging,
inter alia, that the petitioners were persons of desperate character and they
were trying to take forcible possession of the lands of Khata No. 56, which were
in peaceful possession of the opposite party. In the said petition they set out
in detail their claim over the plots in question. The Sub-Divisional Magistrate
sent the said petition to the local police for inquiry and report. After
inquiry, the police submitted a report. On the 25th January, 1972, the Sub-
Divisional Magistrate passed an order saying that, from the petition filed by
the members of the first party and the report of the police, he was satisfied
that there was an apprehension of a breach of the peace in relation to five
plots, namely, Plot Nos. 671, 830, 1086, 1142 and 1253, of Khata No. 56,
measuring about 2 bighas 6 kathas and 7 dhurs, situate in village Nathu Chhap,
P. S. Siwan. He, therefore directed that a proceeding under Section 144 of the
Code be drawn up and the parties be called upon to show cause as to why the same
be not made absolute against them. He further restrained both the parties from
going upon the lands in question.

   3. Both parties filed their show cause, and the learned Sub-Divisional
Magistrate, after hearing the parties, on the 28th March, 1972, passed the
impugned order. He has first mentioned the details of the disputed lands in the
impugned order and thereafter he has referred to the aforesaid police report and
as to how the proceeding under Section 144 of the Code was drawn up and both
parties were restrained from going upon the lands in question. Then he has
stated that he heard both parties and looked into their show cause petitions
from which it appeared to him that both the parties were claiming possession of
the lands in question. The learned Magistrate, thereafter, set out in detail the
respective claims of the parties to the lands in question. Towards the end he
observed that, after perusing the record, he was satisfied that there was a
dispute between the parties in relation to lands on account of which there was
an apprehension of a breach of the peace, and, as such, he was converting the
proceeding under Section 144 into one under Section 145 of the Code. In this
connection he also referred to an earlier proceeding under Section 144 between
the parties which had been dropped on the 26th October, 1971.

   4. This case was first placed before a learned Single Judge of this Court,
who has referred it to a Division Bench for consideration of the legality of the
order in question.

   5. Learned Counsel appearing for the petitioners has urged that the impugned
order is, per se, illegal, inasmuch as the learned magistrate had no
jurisdiction to convert the proceeding under Section 144 into one under Section
145 of the Code after the expiry of a period of two months, meaning thereby that
the proceeding under Section 144 had been drawn up on the 25th January, 1972,
which, by lapse of the statutory period of two months, had lost its force, and,
on the 28-3-1972 there was no proceeding under Section 144 pending which could
have been converted into one under Section 145 of the Code,

   6. Magistrates have been empowered by the Code to exercise certain powers for
maintaining peace, and, for that, they can pass orders in exercise of the powers
conferred under Sections 107, 144 and 145 of the Code, when there is an
apprehension of a breach of the peace. It has been held by a series of decisions
that it is open to a Magistrate to initiate a proceeding under Section 107 or
Section 144 even in cases where the apprehension of a breach of the peace is in
relation to land; but it has been pointed out that it is proper that, when the
apprehension is in relation to land, action under Section 145 of the Code should
be taken and the Magistrate should decide as to which of the rival claimants was
in possession of the subject of dispute on the date of the proceedings. In the
Code there is no specific provision for converting a proceeding under Section
144 into one under Section 145, and whenever a Magistrate purports to convert a
proceeding under Section 144 into one under Section 145, it has to be taken
that, for all practical purposes, he had drawn up a fresh proceeding under
Section 145. This aspect of the matter has been considered by a Bench of this
Court in Mossammat Simla Devi v. Sobhnath Mahamarik Crl Revn. No. 1919 of 1970,
disposed of on the 13-8-1974 (Pat), where it was observed : --

     It is true that there is no specific provision in the Code for converting a
proceeding either under Section 144 or under Section 107 into one under Section
145, and it has to be held that, for all practical purposes, when it is stated
that any such proceeding is being converted into one under Section 145, it
amounts to drawing up a proceeding under Section 145.

   7. In the instant case, the fact the learned Magistrate, in the impugned
order, has said that he was converting the proceeding under Section 144 into one
under Section 145, in my opinion, is not of much consequence. Whenever a
proceeding under Section 145 is drawn up either during the pendency of a
proceeding under Section 144. or on the eve of the expiry of the proceeding
under Section 144, or after the expiry of the force of the proceeding under
Section 144, there is nothing like continuity between the proceeding under
Section 144 and the proceeding under Section 145, because the Magistrate in the
proceeding under Section 145 is not to decide as to which of the parties was in
possession on the date the proceeding under Section 144 was drawn up; but he has
to decide as to which of the parties was in actual physical possession of the
subject of dispute on the date of the proceeding, that is, the date on which the
proceeding under Section 145 was drawn up.

   A reference can be made in this connection to a Bench decision of this Court
in Lakshami Narain Singh v. Jugeshwar Jha AIR 1954 Pat 169 : 1954 Cri LJ 443,
where it was held that the words "decide the question whether any and which of
the parties was at the date of the order before mentioned in such possession of
the said subject" occurring in Section 145 (4) refer to the date of the
initiation of the proceeding under Section 145, and not to the date of the
initiation of the proceeding under Section 144 of the Code. Thus, even if the
order purporting to convert a proceeding under Section 144 into one under
Section 145 passed after the expiry of the period of two months from the date of
the initiation of the proceeding under Section 144, but the aid order is in
conformity with the requirements of Section 145 (1), then the said order or
further proceedings taken in pursuance of he said order cannot be held to be
illegal and without jurisdiction. On the other hand, f the Magistrate passes the
order simply converting the proceeding under Section 144, which has spent its
force, into one under Sec-Section 145, without fulfilling the requirements of
Sub-section (1) of Section 145, different consideration may arise. However, even
in such cases a distinction has to be made between cases where the person
aggrieved approaches this Court without taking a chance of the final order under
Section 145, and cases where the party aggrieved has waited till the final order
is passed against him. In the first category of cases, this Court, in exercise
of its revisional powers under Sections 435 and 439 of the Code, may quash the
order, but in the latter category of cases, the petitioner may be faced with a
series of cases of this Court where it has been held that, if the party takes
the chance of getting a favourable order passed in his favour, then, he cannot
question the initial order converting the proceeding under Section 144 into one
under Section 145, on principles and estoppel. A reference in this connection
can be made to the aforesaid case of Bimla Devi, (Cri. Revn. No. 1919 of 1970,
D/- 13-8-1974 (Pat)) and that of Shibnarayan Das v. Satyadeo Prasad AIR 1943 Pat
44 : 1943) 44 Cri LJ 25.

   8. Learned Counsel for the petitioners has, however, referred to certain
decisions in support of his contention that a proceeding under Section 144 of
the Code cannot be. converted into a proceeding under Section 145 after the
expiry of the statutory period of two months. He has, first, referred to a
decision of the Orissa High Court in Hadu Khan v. Mahadev Das . In that case, on
the basis of a police report, dated the 20th June, 1965, a proceeding under
Section 144 was initiated on the 28th June, 1965. Later, the Magistrate, by his
order dated the 20th August, 1965, converted the said proceeding under Section
144 into one under Section 145 of the Code; but no notice, however, was issued
in pursuance of this order and nothing further in accordance with the
requirements of Section 145 was done. On the 11th September, 1965, a fresh
preliminary order was passed under Section 145 on the basis of the earlier
police report, dated the 20th June, 1965. The learned Magistrate, while deciding
the proceeding under Section 145, framed a question as to which of the parties
was in possession of the subject of dispute on the 28th June, 1965, or within
two months prior to that, meaning thereby the date of the initiation of the
proceeding under Section 144. The final order passed by the Magistrate was,
therefore, quashed, holding that the crucial date of possession of the parties
could not be the date of the order under Section 144. In connection with the
right of the Magistrate to convert a proceeding under Section 144 into one under
Section 145, it was observed:

     .... such coversion, if it is not an independent preliminary order, must
take place on or before the very last day when the prohibitory order under
Section 144, Cri. P. C. is due to expire.

   This observation obviously refers to an order of conversion which simply says
that the proceedings under Section 144 is converted into one under Section 145,
and not to such orders which, while purporting to convert the proceeding under
Section 144 into one under Section 145, conform to the requirements of Section
145 (1) of the Code. Such orders, in the eye of law, are really independent
orders under Section 145 (1).

   9. Learned Counsel for the petitioners has also referred to the case of
Mahesh Dhanuk v. Sakal Mahto 1973 BBCJ 109 where an order converting a
proceeding under Section 144 into one under Section 145, after the expiry of the
period of two months, was set aside by a learned Single Judge of this Court.
From the said Judgment it appears that the learned Magistrate had purported to
convert the proceeding under Section 144 into one under Section 145 after the
expiry of the statutory period of two months. From the judgment it does not
appear that the requirements of Sub-section (1) of Section 145 had been
fulfilled while converting the proceeding under Section 144 into one under
Section 145. In that view of the matter, that case is not of much help to the
petitioners, on the facts and in the circumstances of the instant case.

   10. Learned Counsel has also referred to Single Judge decisions of this Court
in Satya Narain Singh v. Jangi Singh Cri. Revn. No. 1624 of 1970, decided on
13-8-1973 (Pat); Jagernath Sah v. Ram Bilas Sah, Cri. Revn. No. 212 of 1972,
decided on 26-7-1973 (Pat); Sahdeo Rai v. Raghunandan Rai Cri. Revn. No. 810 of
1970, decided on 16-9-1971 (Pat)); Ram Nagina Singh v. Bujhawan Singh Cri. Revn.
No. 1892 of 1972, decided on 30-10-1972; Karunaran-jan Das v. Satish Chandra
Ghosh Cri. Revn. No. 875 of 1969, decided on 6-1-1970 (Pat) and Mahanth Gopal
Das v. Ram Bilas Yadav Cri. Revn. No. 2998 of 1970, decided on 1-8-1973 (Pat).
In all these cases the orders converting the proceedings under Section 144 into
proceedings under Section 145, after the expiry of the period of two months,
were held to be bad and were set aside. Except in Criminal Revision No. 875 of
1969 the orders converting the proceedings under Section 144 into proceedings
under Section 145 are not on the records of these cases. From the Judgments it
appears that most likely the orders did not conform to the requirements of Sub-
section (1) of Section 145. In Criminal Revision No. 875 of 1969 (Pat), this
aspect of the matter has not at all been considered.

   11. Now, the question is as to whether the order, dated the 28th March, 1972,
passed in the instant case, is a valid order in accordance with the provisions
of Section 145 of the Code. Learned Counsel for the petitioners has submitted
that there was no fresh material 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 and he has simply referred to the
materials which were on the record of the proceeding under Section 144 and
which, after the lapse of the statutory period of two months, became non est and
could not form the basis of the satisfaction of the learned Magistrate regarding
the existence of an apprehension of a breach of the peace.

   12. Section 145 of the Code docs not prescribe any particular mode of
satisfaction 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 intiate a proceeding under Section
145. This satisfaction may be based on a police report or on any other
information. Sub-section (1) of Section 145 itself says-

     145. (1) Whenever a District Magistrate, Sub-Divisional Magistrate .... is
satisfied from a police-report or other information that a dispute likely to
cause a breach of the peace exists concerning any land....

   The Magistrate, who has heard the parties in the proceeding under Section
144, perused their show cause petitions and looked into the police report and
other documents, can legitimately be satisfied on those materials that there is
an apprehension of a breach of the peace relating to possession over land. I am
unable to appreciate as to how if, on those very materials, the learned
Magistrate, who could have passed an order initiating a proceeding under Section
145 within two months from the date of the initiation of the proceeding under
Section 144, could not do so only on the next day of the expiry of the period of
the said two months. The matter may be different if sufficiently long period has
intervened between the date of the expiry of the proceeding under Section 144
and the date of the initiation of the proceeding under Section 145,

   13. During the course of arguments it was also submitted that the learned
Magistrate should have called for a fresh police report and should not have
acted merely on the records of the proceeding under Section 144, which was dead
on the date when the impugned order was passed. In my opinion, in view of Sub-
section (6) of Section 144, any order passed under Section 144 does not remain
in force for more than two months from the making thereof. But, it does not mean
that the Magistrate cannot base his satisfaction regarding the existence of an
apprehension of a breach of the peace on the records of the case, and the
arguments advanced on behalf of the parties.

   14. In R. H. Bhutani v. Miss Mani J. Desai , the

   proceeding had been initiated on the basis of an application filed by one of
the parties to the proceeding. No Police-report had been called for by the
Magistrate. A grievance was made before the Supreme Court on the basis of some
decisions of different High Courts that the Magistrate should not have drawn up
the proceeding under Section 145 without getting the matter verified by the
police. In this connection it was observed as follows:

     The proposition that the Magistrate, before proceeding under Section 145
(1), must, as rule, call for a police report where he is moved by a private
party or that the absence of a police-report is a sure indication of the absence
of possibility of breach of peace is not warranted by the clear language of the
section which permits the Magistrate to initiate proceeding either on the police
report or on other information.' The words 'other information' are wide enough
to include an application by private party. The jurisdiction under Section 145
being no doubt of an emergency nature, the Magistrate must act with caution but
that does not mean that where on an application by one of the parties to the
dispute he is satisfied that the requirements of the section are existent, he
cannot initiate proceedings without a police report.

   As I have already pointed out, the learned Magistrate, in the impugned order,
has set out the respective claims of the parties and has mentioned that he had
looked into the show cause filed by both the parties in the proceeding under
Section 144, he had heard the parties regarding their claim of possession over
the lands in dispute and he had also perused the police-report, and, on the
basis of all those materials, he was satisfied that there was an apprehension of
a, breach of the peace concerning the lands in question, and, as such, it was
necessary to convert the proceeding under Section 144 into one under Section 145
of the Code. This order, in my opinion, is in conformity, with Sub-section (1)
of Section 145, In exercise of its revisional powers, this Court cannot weigh
the sufficiency of the materials which satisfied the Magistrate. As was pointed
out in the case of R. H. Bhutani AIR 1968 SC 1444 : (1969 Cri LJ 13):

     9. The satisfaction under Sub-section (1) is of the Magistrate. The
question whether, on the materials before him, he should initiate proceedings or
not is, therefore, his discretion which, no doubt, has to be exercised in
accordance with the well recognised rules of law in that behalf. No hard and
fast rule can, therefore, be laid down as to the sufficiency of material for his
satisfaction. The language of the sub-section is clear and unambiguous that he
can arrive at his satisfaction both from the police report or 'from other
information' which must include an application by the party dispossessed. The
High Court, in the exercise of its revisional jurisdiction, would not go into
the question of sufficiency of material which has satisfied the Magistrate.

   15. In my opinion, the order under revision is consistent with the
requirements of Sub-section (1) of Section 145 of the Code and it does not
require any interference in exercise of the powers of this Court under Sections
435 and 439 of the Code.

   16. The application in revision is, accordingly, dismissed.

   S. Ali Ahmad, J.

   17. I agree.