Velur Devasthanam By Its Head Clerk, R, Ramaswamy Pillai v. State

Cr. R. C. No. 1227 of 1951 has been filed against the order dropping proceedings under S. 145, Cr. P. C. made by the Sub Divisional Magistrate, Mayuram, in M. C. No. 74 of 1951.

The facts are—On the ground of strained feelings existing between the Velur Devasthanam and Sambandamurthy Nainar in connection with the cultivation of five survey numbers in the village of Maruvathur, 24 acres in extent, a preliminary order dated 13-7-1951 under S. 145(1) Criminal Procedure Code, was issued calling on both the parties to put in their written statements in regard to the factum of actual possession. The lands were also attached under S. 145(4) Criminal Procedure Code, and the Tahsildar of Sirkali was directed to be the court agent. This order was passed on 14-7-1951. The Tahsildar of Sirkali took possession of the lands on 18-7-1951. On 26-7-51 the Tahsildar held an auction in respect of the lease of the lands for fasli 1361 and one Gopala Chettiar was the highest bidder and the lease was granted to him for 290 kalams of paddy and 72 bundles of straw. This Gopala Chettiar is stated to have deposited Rs. 1848-8-0 as security for the due performance of the obligation under the lease. In response to the preliminary order dated 13-7-1951 written statements were filed by the parties on 4-9-1951 and 11-9-1951. These are the facts constituting the background as to what happened on 19-9-1951.

On 19-9-1951 P. W. 1 the Head Clerk of the Petitioner Devasthanam as well as the counter-petitioner (P. W. 1) were examined and the learned Sub-Divisional Magistrate passed the following order:

“Both the petitioner and the counter petitioner deposed in court that there was no breach of peace or clash regarding the lands in dispute. I therefore am satisfied that there existed no dispute likely to cause a breach of peace. Hence under s. 145 (5), Criminal Procedure Code, I cancel the preliminary order under S. 145 (1) Criminal Procedure Code, and withdraw the attachment of the lands and all further proceedings under s. 145 are hereby dropped.”

The present revision petition is filed on the foot of the following ground, namely, that in cases where parties in response to the preliminary order passed under s. 145 (1) Criminal Procedure Code, came and satisfied the court that there is no likelihood of breach of the peace, s. 145 (5) can be resorted to; but if without doing so they filed their statements and asserted their rights and the case itself was posted to a later date for evidence, at that stage there was no question of clause (5) of s. 145, Criminal Procedure Code coming into operation.

This proposition involves two aspects, namely, whether in law the Sub Divisional-Magistrate was entitled to pass the order dropping the proceedings at the stage at which he had done and secondly, whether on the reasons set out by him the proceedings could be dropped as a fact.

Point 1:—On the first point I have come to the conclusion that in law the learned Sub Divisional Magistrate was fully entitled to drop the proceedings at the stage at which he had done. The object of S. 145, Criminal Procedure Code, is to preserve public peace and tranquility of the realm from riots and commotion. Orders under S. 145, Criminal Procedure Code are merely Police orders made to prevent breaches of the peace and they decide no questions of title; Dinomani Chowdrani v. Brojo Mohini Chowdhrani 1902 29 Cal. 187 P.C. The foundation of the jurisdiction of the Magistrate is the apprehension felt by him that unless action is taken there will be a breach of the peace. It is the Magistrate who should be satisfied that the apprehension is an existing one and an adequate one for taking action to avert the breach of the peace. Mere apprehension of the party or even of the Police or by a superior authority, namely the District Magistrate, is no sufficient ground for taking action: Behari Majhi… v. Hari Majhi…Opposite Party. 1932 A.I.R Cal. 60, Shibnarayan Das v. Sat Yadeo Prasad 1943 A.I.R Pat. 44, Todar Mal v. Emperor 1930 32 Cr.L.J 309, Baliram Patil v. Gangoo 1931 33 Cr.L.J 937. It follows therefore that when that Magistrate who is responsible for the maintenance of law and order within his own division comes to the conclusion that there was no longer any apprehension of a breach of the peace, it is his duty to drop further proceedings leaving it open to the parties to resort to the appropriate remedies in civil courts. This can be done at any stage.

And what is more it is not obligatory for a Magistrate to take evidence before dropping proceedings under S. 145 Criminal Procedure Code, and need not give an opportunity to the parties to establish the contrary. This has been laid down in two decisions of this court in Suryanarayana v. Ankineed Prasad Bahadur 1924 47 Mad. 713 and in Narasayya v. Venkaiah 1925 M.W.N 792. In Suryanarayana v. Ankineed Prasad Bahadur it was pointed out that whatever the source of the Magistrate's information he might act upon it if he was satisfied that the state of things, which alone would have given him jurisdiction to proceed with the enquiry, no longer existed. The learned Judge (Spencer, J.) relied upon Manindra Chandra Nandi v. Barada Kanta Choudhry 1903 30 Cal. 112 and the learned Judge further points out that the Magistrate's power contained a full discretion of his power to drop proceedings at any stage and that he declined to interfere with the order of the Magistrate on this point. In the later case Narasayya v. Venkiah Justice Krishnan followed the earlier decision and came to the following conclusion:

“I do not think it is open to a party to come up here and say that the Magistrate had no business to drop proceedings on the ground that there was no likelihood of a breach of the peace without giving him an opportunity to show that there was such a likelihood. It is the Magistrate's duty to be satisfied that there is no breach of the peace in his district. Clause (5) of s. 145 provides for a special case where as the Magistrate is proceeding with the trial of the question of possession, the parties to the proceedings or even other persons who are interested are given the right to show that no dispute likely to cause a breach of the peace exists or has existed. The existence of this clause does not take away the power of the Magistrate himself to drop the proceeding, if he is satisfied that there is no further likelihood of a breach of a peace.”

Therefore the first aspect of this case and the point taken fail.

Point 1:— Turning to the question of the sufficiency of the evidence on which the learned Magistrate has come to the conclusion that there was no likelihood of the breach of the peace, the High Court in revision will not interfere with such an order unless it was obviously unreasonable or unjust, because though the High Court is invested with powers of revision, still orders under this section should not be lightly disturbed; it is only in very exceptional cases the High Court will interfere; In re Lingaraja Misra9 and Hardeo Singh v. Ram Chariter Singh 17 Cr.L.J 286 Pat.. Orders passed by a competent Magistrate are not to be lightly interfered with by the High Court first because the object of such orders is to preserve peace and secondly because the aggrieved party has his remedy by a civil suit: Krishnappa Naidu v. Alamelu Ammal 1917 5 L.W 165. Proceedings under this chapter are of a special nature and are such that the Magistrates may be allowed greater liberty in carrying out these provisions than they are allowed in trying ordinary crime. The provisions of this chapter are concerned with the disputes relating to immovable property which are likely to cause a breach of the peace and give Magistrates power to deal with matters of a quasi-civil nature because upon the Magistrate and the Police is thrown the burden of maintaining the public peace. In this view it is undesirable that an order in which the Magistrate clearly says that he does not apprehend a breach of the peace and that further proceedings may be safely dropped should be interfered with in revision and the Magistrate be made to feel an apprehension which he does not really feel: Sudalaimuthu Chettiar v. Enan Samban 16 Cr.L.J 767 Mad.. In this case on the face of the order it appears to be reasonable and based upon acceptable evidence. Therefore, on the ground of sufficiency of evidence this point taken fails.

In the result the main petition has got to be dismissed and is hereby dismissed.

In regard to the two subsidiary petitions, Cr. M. P. Nos. 2428 and 2429 of 1951 for giving directions to the Tahsildar of Sirkali to retain with him the amount of Rs. 1848-8-0 deposited by Gopala Chetty and to continue him as the lessee of the lands and authorise him to harvest the crops and retain the same or its value with him etc., the petitioner can obtain the necessary reliefs by applying to the Sub Divisional Magistrate because it is now settled law that the Magistrate dropping proceedings under S. 145 Criminal Procedure Code, does not become funtus officio but has jurisdiction to pass further orders in the case for winding up the proceedings started under S. 145 Cr. P. C.; see Suryanarayana v. Ankineed Prasad Bahadur and Narasayya v. Veitkiah These ancillary petitions are disposed of accordingly.

N.T.RPetition dismissed