Rana Balram vs Pritam Singh

D. Falshaw, J.—The facts in this revision petition filed by Rana Balram are as follows. On the 28th of December 1959, the respondent Pritam Singh as Secretary of the Managing Committee of the institution known as Arya Vedic Pathshala, Arya Nagar, Paharganj, Delhi, filed an application , in the Court of Mr. Sham Behari Lai, Magistrates 1st Class, u/s 145, Criminal Procedure Code, In this application he stated that the institution was receiving financial aid to the extent of 90 per cent from the Delhi Municipal Corporation, which, had approved the Managing Committee of which the petitioner was the Secretary, and that the school building was in physical possession of the Managing Committee and that on the previous day, the 27th of December 1959, a case had been registered u/s 448, Indian Penal Code, at the Paharganj Police Station against the present petitioner Rama Balram and others on a report made by the petitioner.

It was further stated that the school, which had been running for about 30 years, was attended by 500 boys and girls and that the current session was going on and the school was to open on 2nd of January, 1960, after the winter holidays and that the staff of the school required access to the documents of various kinds lying in the building. It was therefore prayed that the petitioner be allowed peaceful possession of the building which had been disturbed by the action of the persons named in the report made to the police the previous day, and that the Paharganj police be directed to take necessary action to enable the school to run smoothly. Apparently a copy of the letter front the Corporation approving the appointment of the Managing Committee was attached with the application on which the learned Magistrate recorded1 A the following order:

Application u/s 145, Criminal Procedure Code, only lies when there is an apprehension of a breach of peace. In this application there are no allegations that a breach of peace is likely to result. The application is therefore rejected.

It appears that in these circumstances, within an hour or so, a second application was filed in which the present petitioner and two other persons who had been mentioned as named in the report to the police were now named as respondents. This second application is essentially the same as the first but a few more averments were made. It was now alleged that the three respondents named in the application had committed a criminal trespass the previous day and that a case had been registered u/s 448, Indian Penal Code, on the complaint of the applicant.

It was again mentioned that the staff of the school required access to the papers lying in the building into which the respondents had trespassed and it was now stated that the respondents had threatened the petitioner with dire consequences and would not allow him and the teachers to enter the building and that there was an imminent danger of a breach of the peace in respect of the school building. It was therefore prayed that the property be attached and its possession be given to the applicant till the final decision of the application.

On this the learned Magistrate passed the following order:

S. H. O. Paharganj to report if there is any immediate apprehension of a breach of peace as alleged. The report should reach me by the 31st December 1959 or earlier.

The record shows that on the 1st of January, 1960, the learned Magistrate recorded an order to the effect that since it appeared to him from the report of the S. H. O. Paharganj dated the 29th of December 1959 and from the application of Pritam Singh that a dispute likely to cause a breach of the peace existed concerning the building in question and the case appeared to be one of emergency he had attached the building and the articles lying therein pending the decision of the case.

It seems that when the parties appeared in Court on the 2nd of February 1960 the presiding officer was Mr. Hargolal, whose place had apparently been temporarily taken by Mr. Sham Behari Lai while he was en leave. The legal point was raised before him that his learned predecessor had passed two kinds of contradictory orders on the same day on the applications filed by Pritam Singh u/s 145, Criminal Procedure Code.

Although the learned Magistrate appears to have been doubtful of the correctness of the orders passed by his learned predecessor he felt that he could not now review the second order, and advised the respondents to challenge the order " of his predecessor by way of revision in this Court.

The provisions of law relied on by the learned Counsel for the petitioner are contained in Sections 369 and 403, Criminal Procedure Code. Section 369 provides:

Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court no Court, when it has signed its judgment, shall alter Or review the same, except to correct a clerical error.

Section 403 affirms in detail the principle that a y person once convicted or acquitted cannot be tried for the same offence, and it appears to have no application in a case of this kind. In any case it concludes with the explanation that the dismissal of a complaint, the stopping of proceedings u/s 249, the discharge of the accused for any entry made upon a charge u/s 273, is not an acquittal for the purposes of this Section.

Three cases have been cited before me on behalf of the petitioner. In the first of these, Lallan Misir and Others Vs. Ram Rachchha, it was held by Daniels J. that an order passed u/s 145" was a, final order and it was not open either to the Magistrate who passed it or to his successor to review it, or to set it aside in any way, and if he did so act his action was without jurisdiction. It is, however, clear that in that case the order referred to, a final order u/s 145, Criminal Procedure Code, was an order passed after the contest between the parties, and obviously such an order could not be reviewed or altered under Sue, 369 either by the Magistrate who passed it or by a successor of his.

The second case is Ram Cherey Vs. Baba Ram Priya Das, In that case a final order had been passed by a Magistrate u/s 136, Criminal Procedure Code, after a contest between the parties and apparently it was sought to reopen the matter and have a fresh order passed by agreement and it was held by Misra J. that the word "judgment" in Section 369 included the decision of the Court trying the case and it was not possible to hold that the prohibition did not apply to the final order passed by a Magistrate u/s 136. Here again there can be no dispute about the correctness of the view of the learned Judge but it is doubtful whether it is applicable in the present case.

Finally there is the case of G.H. Bhatia Vs. Bholumal Dharmdas, In that case a criminal complaint relating to offences under the Indian Penal Code had been fought out by the parties up to the High Court which had given a final decision in revision. One of the parties who had considered himself aggrieved sought to relating the matter in dispute. I do not think the decision in this case helps the petitioner at all, since it was held by Kumarayya J. that a judgment in the criminal proceedings was indicated to include the final order in a trial .terminating in a conviction or acquittal of the accused, and that if a criminal revision petition was dismissed on the merits by the High Court after fully hearing the parties, the principle of equity and justice would demand that no other petition on the same matter should be entertained and the plea that the order passed in revision not being a judgment must be open to alteration from time to time in exercise of inherent powers of the High Court was therefore void of force.

In my opinion none of these cases has any bearing on the question involved in this case which is whether, when a petition u/s 145, Criminal Procedure Code, is dismissed in limine for want of a specific allegation regarding the danger of a breach of the peace, although the facts set out in the petition may reasonably lead to such an inference, and a fresh petition based on the same facts in which the specific allegations are made is filed, the learned Magistrate who passes an order nailing for a report from the local police can be said to be reviewing his judgment or altering it so as to contravene the provisions of Section 369.

In my opinion the position is not different from that which arises when a criminal complaint alleging some offence is dismissed on some technical ground or in default on the failure of the complainant to appear in the early stages. In such a case there can be no doubt that a fresh complaint based on the same facts can be filed, and any orders passed thereon cannot be said to be passed in alteration or review of the order dismissing the earlier complaint. I am therefore of the opinion that there was nothing illegal in the entertainment of the second application u/s 145, Criminal Procedure Code, by the learned Magistrate and his passing, orders thereon in accordance with law and'' accordingly dismiss the present revision petition. The parties are directed1 to appear in the Lower Court on 11-4-60.