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Hari Ram And Others v. Banwari Lal And Others
Summary of Opinion — Gobindpuri Extension (Section 145 CrPC proceedings)
Factual and Procedural Background
Residents of Gobindpuri Extension, New Delhi encroached on a portion of Government land and constructed on it. The residents became divided into two groups. Banwari Lal and others (Party No. 1) intended to use the premises as a Panchayat Ghar. Hari Ram and others (Party No. 2) sought to install a sadhu named Ram Rakha (disciple of Baba Balak Ram) and convert the premises into a temple. Hari Ram's group inducted Ram Rakha into the premises, but Banwari Lal and others later turned him out and took forcible possession, using the premises as a Panchayat Ghar.
Due to the dispute and the resulting tension, the police recommended proceedings under Section 145 CrPC. On 11 December 1963, Shri R.B.L. Mathur, Sub-Divisional Magistrate, passed a preliminary order under Section 145(1) CrPC: he required the parties to attend court on 20 December 1963, to file written statements concerning actual possession, to produce documents and affidavits, and ordered attachment of the property pending enquiry.
After hearing evidence, the trial Magistrate concluded that Banwari Lal and others (Party No. 1) were in possession on the relevant date and allowed them to remain in possession (order dated 1 September 1964). Hari Ram and others (Party No. 2) filed a revision petition before the Additional Sessions Judge, who recommended to the higher Court that the Section 145 proceedings be quashed and the trial Magistrate's order of 1 September 1964 be set aside. The present opinion addresses that recommendation and the challenge to the trial Magistrate's order.
Legal Issues Presented
- Whether a trial Magistrate who has passed a preliminary order under Section 145(1) CrPC must, before passing a final order, again record an explicit finding that a dispute likely to cause a breach of the peace exists, and whether the absence of such a finding vitiates his order.
- Whether affidavits or statements asserting that "no breach of peace exists" (filed by persons described as parties concerned or as other persons interested) oblige the Magistrate, under Section 145(5) CrPC, to record a formal adjudication and finding on the existence or non-existence of a dispute likely to cause a breach of the peace and to cancel his preliminary order if no such dispute existed.
- Who falls within the expression "parties concerned" in Section 145 CrPC (i.e., the scope of persons entitled to be treated as parties for purposes of Section 145(5)).
- Whether the trial Magistrate's finding as to actual possession was supported by evidence on the record.
Arguments of the Parties
Party No. 2 (Hari Ram and others) — Represented by Mr. Safeer
- The trial Magistrate was bound to find, before passing the final order under Section 145 CrPC, that there was a likelihood of a breach of the peace; absence of that finding renders the order vulnerable.
- Affidavits (for example, by Jagat Ram dated 21 July 1964) had categorically asserted that "no breach of peace exists" with regard to the property; under Section 145(5) CrPC the Magistrate was therefore bound to record a finding as to the existence or non-existence of a dispute likely to cause a breach of the peace and, if no such dispute existed, to cancel the preliminary order. Because the Magistrate did not do so, the Additional Sessions Judge was right to recommend quashing the proceedings.
- Challenged the sufficiency of the evidence supporting the Magistrate's finding as to possession, contending that the written-statement by Hari Ram and others was misread by the trial Magistrate.
Party No. 1 (Banwari Lal and others) — (Represented arguments reflected through Mr. Jain)
- Contended that Party No. 2 did not, in their written statements, raise the issue that there was no likelihood of breach of the peace; therefore Section 145(5) could not be invoked by them to challenge the preliminary order on that ground.
- Pointed out that some affidavits (including Banwari Lal's affidavit of 19 May 1964) expressly stated that "no breach of peace exists," and therefore Party No. 2 could not claim that the Magistrate had failed to adjudicate that question.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Misri Singh v. Pala Singh, 1964-66 Pun LR 963 | Supports the view that once a Magistrate is initially satisfied under Section 145(1) CrPC and assumes jurisdiction, the subsequent enquiry is confined to the fact of actual possession; the Magistrate is not required to re-record a finding about likelihood of breach of peace at the final stage. | The Court relied on this decision to hold that the absence of a fresh finding at the conclusion of the enquiry on the likelihood of breach of peace does not of itself invalidate the Magistrate's order. |
| Ranada Ranjan Bhattachari v. Bharat Chandra Shaha, 25 Cal WN 215 : (AIR 1921 Cal 631) | Explains that under Section 145 the Magistrate has jurisdiction if satisfied from police report or other information that a dispute likely to cause breach of peace exists; sub‑section (5) permits parties to show that no such dispute exists, and if a party succeeds the Magistrate must cancel his order; however absence of an express finding by the Magistrate does not go to the root of jurisdiction. | The Court quoted and applied this principle to support the view that mere absence of a finding on likelihood of breach of peace is not, by itself, a ground for interference with the Magistrate's order unless a party succeeds in showing there was never any likelihood of breach. |
| Krishna Kamini v. Abdul Jabbar, (1903) ILR 30 Cal 155 (Full Bench) | Interprets the words "parties concerned in such dispute" in Section 145 as intended to indicate all persons claiming to be in possession at the time of the initial order under Section 145(1). | The Court agreed with this Full Bench view when addressing who may be treated as "parties concerned" for the purposes of Section 145(5), and used it to reject the contention that affidavits of persons not shown to be "parties concerned" could be treated as triggering the Section 145(5) adjudicatory obligation as against Party No. 2. |
Court's Reasoning and Analysis
The Court approached the matter in discrete steps, addressing the contentions advanced on behalf of Party No. 2 and reviewing the record relied upon by the trial Magistrate.
First contention (necessity of a fresh finding on likelihood of breach): The Court held that a Magistrate may assume jurisdiction under Section 145(1) CrPC only after being satisfied that at the time of the preliminary order a dispute likely to cause a breach of the peace exists. Once that initial satisfaction and assumption of jurisdiction occur, the subsequent enquiry called for under Section 145 is confined to the fact of actual possession of the disputed subject. The Magistrate is not required at the conclusion of that enquiry to record a fresh finding about the existence of a dispute likely to cause breach of peace. The Court expressly relied on Misri Singh v. Pala Singh and Ranada Ranjan Bhattachari v. Bharat Chandra Shaha to support this interpretation and to conclude that omission to state such a finding does not go to the root of jurisdiction.
Second contention (effect of affidavits asserting no breach of peace and application of Section 145(5)): The Court acknowledged that under Section 145(5) a "party so required" (read with Section 145(1) as the "parties concerned") or any other person interested may show that no dispute as contemplated by Section 145(1) existed. If a party succeeds in showing that no likelihood of breach existed, the Magistrate must cancel his order. However, the Court examined the record and observed that Party No. 2 (Hari Ram and others) did not themselves, in their written statement, raise the issue that there was no likelihood of breach of peace. On the contrary, affidavits on the record included statements by Banwari Lal (Party No. 1) asserting that "no breach of peace exists," which undermined Party No. 2's position that the Magistrate failed to adjudicate that question. The Court also found the record unclear as to who were the persons actually required by the Magistrate to attend and therefore could properly be treated as "parties concerned." The Court accepted the Full Bench interpretation in Krishna Kamini that "parties concerned" are those claiming possession at the time of the initial order, and noted that affidavits by persons such as Jagat Ram did not clearly show that they had pressed to be treated as "other persons interested" seeking adjudication under Section 145(5). Because the record did not show that Party No. 2 had raised the question in the capacity required by Section 145(5), the Court was not persuaded to permit that objection at this stage.
Third contention (sufficiency of evidence for the finding of possession): The Court reviewed the materials on which the trial Magistrate relied: the police report, a report of Shri R.B.L. Mathur dated 22 November 1963 arising from spot enquiries, and a resolution dated 6 October 1963, in addition to the pleadings and affidavits. The Court concluded that those documents and the record supported the trial Magistrate's conclusion that Banwari Lal and others were in possession and that the Magistrate's conclusion was justified on the material before him.
Based on the foregoing analysis, the Court declined to accept the Additional Sessions Judge's recommendation to quash the Section 145 proceedings and to set aside the trial Magistrate's order.
Holding and Implications
Holding: PETITION DISMISSED. The Court dismissed the revision petition and upheld the trial Magistrate's order that found Banwari Lal and others (Party No. 1) to be in possession and allowed them to remain in possession.
Implications:
- Direct effect: The trial Magistrate's order dated 1 September 1964 stands and the attachment and possession determination in favor of Banwari Lal and others remains effective as between the parties in this record.
- On law: The Court followed and applied existing authorities (as cited) to confirm that once a Magistrate has, at the preliminary stage, been satisfied under Section 145(1) CrPC, the subsequent enquiry is limited to the question of actual possession; absence of a fresh explicit finding as to likelihood of breach at the final stage does not automatically vitiate the order unless a party successfully demonstrates that there was no likelihood of breach of the peace at all. The opinion does not announce any novel legal principle beyond applying the cited precedents.
Disposition recorded in the opinion: "Petition dismissed." (Paragraph 10 of the opinion.)
1. The residents of Gobindpuri Extension, New Delhi, encroached upon a portion of Government land and raised a construction thereon. It appears that thereafter the residents got divided into two groups. Banwari Lal and others, the first party, wanted to use the premises as Panchayat Ghar whereas Hari Ram and others, party No. 2, wanted to instal a Sadhu by the name of Ram Rakha, disciple of Baba Balak Ram, in the said premises with a view to convert the same into a temple. Hari Ram and others had actually inducted Ram Rakha into the premises but later on Banwari Lal and others turned him out and took forcible possession of the premises. They started using the premises as Panchayat Ghar. This dispute between the two groups resulted in a tension and the matter was reported to the police. The police made a recommendation to the trial Magistrate for taking proceedings under Section 145 of the Cr PC. Shri R.B.L Mathur, Sub Divisional Magistrate, New Delhi, on 11th December, 1963, passed the following order:—
“Whereas from the police reports dated 29-11-1963 and 4-12-1963 from Station House Officer, Kalkaji, it appears that a dispute likely to cause a breach of peace exists concerning a piece of land known as “Panchayat Ghar”, within the local limits of my jurisdiction and since I am satisfied that a dispute likely to cause a breach of peace exists, therefore, I, R.B.L Mathur, Sub Divisional Magistrate, Delhi, requires the parties concerned to attend my Court in person or by pleader on 20-12-1963 and to put in written-statements of their respective claims as respect of the actual possession of the subject of dispute and further require them to put in such document, or to adduce, by putting in affidavits, the evidence of such person as they rely upon the subject of such claim.
2. Since I consider the case one of emergency I also order that pending decision of the enquiry the said property shall be attached. A copy of this order be published by being affixed to a conspicuous place at or near the subject of dispute.”
3. The contesting parties were asked to attend the Court in person or through pleaders on 20th December, 1963, and put in their written-statement in support of their respective claims with respect to the actual possession of the premises in dispute. They were also directed to put in documents or affidavits in support thereof. The premises in dispute were attached under the said order of the Court dated 11th December, 1963. The trial Magistrate after examining the evidence of both the parties came to the conclusion that on the relevant date Banwari Lal and others, the first party, were in possession of the premises in dispute and they were, therefore, allowed to remain in possession. Against the said order dated 1st September, 1964 Hari Ram and others, party No. 2 filed a revision petition before the Additional Sessions Judge, Delhi, and he recommended to this Court that the proceedings taken between the parties under Section 145 of the Cr PC, be quashed after setting aside the order of the trial Court dated 1st September, 1964.
4. The basis of the decision of the learned Additional Sessions Judge is that since no one in the affidavits filed ever asserted that a dis-likely to cause a breach of the peace had existed between the parties concerning the property in dispute, the necessary condition for passing of an order under Section 145 of the Cr PC, was absent. He further held that in the judgment the trial Court had nowhere decided that a danger of a breach of the peace existed and, therefore, the order suffered from an infirmity which rendered it liable to be quashed. Mr. Safeer appearing for party No. 2 has strenuously supported the re-commendation of the learned Additional Sessions Judge and has urged the following points;
(1) The trial Magistrate was bound to find before passing the final order under Section 145 of the Cr PC, that there was likelihood of a breach of the peace and in the absence of that finding the trial Magistrate's order could not stand.
(2) Some of the affidavits filed, such as affidavit by Jagat Ram dated 21st July, 1964, had categorically asserted “that no breach of peace exists with regard to the property in dispute” and consequently in view of sub-section (5) of Section 145 of the Cr PC, the trial Magistrate was bound to record a finding about the existence or non-existence of a dispute likely to cause a breach of the peace and not having done so the learned Additional Sessions Judge was right in making the recommendation.
5. There appears to be no force in the first contention or Mr. Safeer. Of course, Magistrate can under sub-section (1) of Section 145 of the Cr PC, assume jurisdiction only if he is satisfied that at the time of passing the preliminary order a dispute likely to cause a breach of the peace exists concerning any land etc. Once that is done the Magistrate is thereafter expected to call upon the parties concerned in such dispute to attend his Court in person or by pleader and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The enquiry, therefore, after the initial satisfaction of the Magistrate and after the assumption of jurisdiction by him, has to be directed only as respects the fact of actual possession. At that time he has not to record a finding again about the existence of a dispute likely to cause a breach of the peace. This view is supported by a decision of Shamsher Bahadur J. in Misri Singh v. Pala Singh, 1964-66 Pun LR 963. In Ranada Ranjan Bhatta-chari v. Bharat Chandra Shaha, 25 Cal WN 215 : (AIR 1921 Cal 631 (2)), the same question was discussed and the learned Tudges decided;
“Under section 145, the Magistrate has jurisdiction to take proceedings if he is satisfied from the Police report or other information that a dispute likely to cause a breach of the peace exists. Then it is open to either of the parties under sub-section (5) of Section 145 to show that no such dispute exists or has existed. If a party succeeds in doing that the Magistrate must cancel his order, but subject to that cancellation the order of the Magistrate under sub-section (1) shall be final. The effect of this is that unless a party is in a position to show to the Magistrate that there is no likelihood of a breach of the peace the Magistrate's order under sub-section (1) stands. Therefore it follows that the mere absence of a finding by the Magistrate that there is likelihood of a breach of the peace does not go to the root of his jurisdiction and is not in itself sufficient for our interference with his order. Here all that has happened is that both parties denied that there was likelihood of a breach of the peace.”
6. This takes me to the second contention of Mr. Safeer. The argument is that under sub-section (5) “party so required” to attend which expression when read with section 145(1) means the “parties concerned”, or any other person interested were entitled to show that no such dispute as is contemplated by Section 145(1) of the Cr PC, existed and on such a question being raised the Magistrate was bound to record a finding and then cancel or affirm his preliminary order. Mr. Jain objected to this plea being permitted because according to him, the party of Hari Ram did not allege that there was no likelihood of breach of peace. Mr. Safeer sought to overcome this difficulty by relying on the affidavits of Jagat Ram dated 21st July, 1964, and many others, who, according to Mr. Safeer, were not parties required to attend but other persons interested. They did say in their affidavits that “no breach of peace exists……”.
7. The written statement filed by Hari Ram and others, party No. 2, however, bears out what Mr. Tain says. Banwari Lal in his affidavit datea 19th May, 1964, however, categorically stated “that no breach of peace exists with regard to the property in dispute.” In these circumstances, Hari Ram and others cannot be heard to say that they had raised an issue regarding the existence or non-existence of a breach of the peace requiring adjudication by the Magistrate under sub-section (5) of Section 145 of the Cr PC. This takes me to the question whether Tagat Ram or others were “parties concerned” or “other person interested”, within the meaning of Section 145(5) and did they raise the question in that capacity. Nothing is clear from the record as to who were the persons actually required by the Magistrate to attend and consequently who were the parties concerned.
8. There was some controversy at the has also as to the meaning of the expression “parties concerned” in Section 145 of the Cr PC. I am in agreement with the view expressed by a Full Bench of the Calcutta High Court in Krishna Kamini v. Abdul Jabbar, (1903) ILR 30 Cal 155 (FB), that the [words “parties concerned in such dispute” are [intended to indicate all persons claiming to be] in possession at the time of the initial order under sub-section (1) of Section 145 of the Cr PC. Mr. Safeer, however, says that Jagat Ram and others were not parties concerned but were other persons interested and, therefore, entitled to an adjudication at the hands of the trial Magistrate as to the existence of a dispute contemplated by Section 145(1) of the Cr PC. It appears that these affidavits were filed in support of the respective claims of the parties and Jagat Ram and others never pressed that they were “other persons interested” and never asked the Magistrate to adjudicate upon the position in accordance with Section 145(5) of the Cr PC. In the circumstances, I do not feel called upon to permit this question to be argued at this stage for the first time. In any case, that may be the grievance of Jagat Ram and others but not of Hari Ram and others, Party No. 2.
9. Mr. Safeer also raised the question that the finding as to possession by the trial Magistrate was not supported by any evidence. One of the contentions is that the trial Magistrate misread the written-statement filed by Hari Ram and others as to the possession. The trial Magistrate has also relied on the police report, the report of Shri R.B.L Mathur Magistrate dated 22nd November, 1963, as a result of spot enquiries, and the resolution dated 6th October, 1963. Perusal of these documents shows that the Magistrate was right in the conclusion to which he arrived as to possession. In these circumstances I think the order of the trial Magistrate was right and I, therefore, decline to accept the recommendation of the learned Additional Sessions Judge. The petition is, therefore, disposed of accordingly.
AK/NRK/G.G.M
10. Petition dismissed.
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