Shri Karam Chand vs Shri Om Parkash

D.B. Lal, J.—This is a criminal reference which has come to this Court u/s 438, read with Section 439 of the Code of Criminal Procedure. Proceedings u/s 145 of the Code were initiated before the Sub-Divisional Magistrate, Rampur, at the instance of one Om Parkash. The Petitioner was the opposite party and the allegation of the Respondent Om Parkash was, that he was owner-in-possession along with a few others of certain khasra numbers. Still Karam Chand Petitioner interfered in his possession and started constructing a wooden structure, with the result that breach of peace was committed between the parties. The learned Magistrate upon the information received made the preliminary order on 22-7-1971 and directed the parties to put in their written statements accompanied by affidavits of witnesses in support of their respective contentions. In the meanwhile he also ordered for the attachment of the land in dispute. After several adjournments were granted by the learned Magistrate due to some reason or the other, the case came up ultimately for consideration before him. The Respondent Om Parkash supported his case by filing his own affidavit and also he brought in aid for himself several other affidavits of witnesses. Similarly Karam Chand Petitioner also submitted his affidavit and produced affidavits of a few other persons. It was also discovered that Karam Chand Petitioner is a person suffering from physical incapacity and as such it was pleaded that he was not likely to disturb peace between the parties. It appears on a subsequent date, the learned Magistrate also examined a few witnesses. The order of the learned Magistrate, which has been quoted in extenso in the reference order drawn up by the learned Sessions Judge, indicates that he made a bare mention of these affidavits and believed one set of affidavits over the other and ultimately held that actual possession was with Om Parkash and the Petitioners were responsible for committing breach of peace. As such he allowed the application u/s 145 and declared Om Parkash to be in possession and his possession is not to be disturbed by Karam Chand Petitioner.

Having been dissatisfied with this order of the learned Magistrate, Karam Chand came in revision before the Sessions Judge, Mahasu. While considering the case of the Petitioner, the learned Sessions Judge held that the order made by the learned Magistrate was not a judgment in the eye of the law. Neither points for determination, nor decision with the reasons thereof were mentioned in the order. On this ground, the learned Sessions Judge considered that the order of the learned Magistrate could not be sustained. Accordingly he has recommended for the quashing of that order.

I have heard the learned Counsel for the Petitioner and I find no reason to take a different view than what has been taken by the learned Sessions Judge. It is abundantly clear that the learned Magistrate was required to consider the affidavits submitted by respective parties on their merit and thereafter he had to arrive at some categorical finding as to which of the parties was in possession and in what manner his possession was disturbed and if any breach of peace was committed, so that the jurisdiction of a criminal Court could be invoked u/s 145.

A perusal of the order of the learned Magistrate indicates that he only referred to the affidavits and then immediately stated that he was satisfied "by due enquiry" that one set of evidence was worthy of Credence as against the other. That was not sufficient, because no reasons have been provided in the order as to why one set of a affidavits has been believed over the other. In a judgment, the points for determination, the decision on each point and reasons for the decision that has been arrived at, must be given. Unless that is done, the order or Judgment cannot be considered to be judicial and validly, written. I am, therefore, in accord with the learned Sessions Judge to hold that the decision of the learned Magistrate could not be sustained and was rightly recommended to be quashed.

I would, therefore, accept the reference submitted by the learned Sessions Judge and would quash the order dated 13-1-1972 of the learned Sub-Divisional Magistrate, Rampur.

The learned Counsel for the Petitioner submitted that almost two years have since elapsed the learned Magistrate made the preliminary order in this case. According to the learned Counsel, there may not be any case existing for breach of peace and as such the very jurisdiction of the Magistrate u/s 145 may not be exercised. It is difficult for this Court to express any opinion as to this ground urged by the learned Counsel. If the learned Magistrate considers that due to lapse of time, no case of breach of peace at all exists, he is always at liberty to quash the very proceedings u/s 145.

Therefore, the case is being remitted to the learned Magistrate for de novo consideration and for disposing it of as provided under law.