1. This is a case under Section 145 of the Criminal Procedure Coda. The Districts Magistrate made the initial order stating that he was satisfied of the existence of a dispute likely to cause a breach of the peace, and directed the parties concerned in it to attend the Court of a Subordinate Magistrate and to put in written statements of their respective claims to the land which was the subject of dispute.
2. The Magistrate to whom the case was made over was a Magistrate of the first class empowered to make an order under Sections 145,146 and 147, and he, after a prolonged enquiry in which a great deal of evidence was taken, being unable to satisfy himself as to which of the parties was in possession, made an order under Section 146 attaching the property until a competent Civil Court had determined the rights of the parties thereto.
3. On a rule obtained by the first party, Rajah Satish Chandra Panday, Mr. Hill contends, first, that the Magistrate who held the enquiry directed in Section 145 and made the order under Section 146 had no jurisdiction, as he was not the Magistrate who made the initial order and who was satisfied of the existence of a dispute such as would justify proceedings under Section 145. In other words, that the jurisdiction to make an order under Sections 145 and 146 is personal to the Magistrate who initiates the proceedings : second, that the initial proceeding under Section 145 is defective, inasmuch as it does not set out any reasonable or sufficient ground for the belief that a breach of the peace was imminent if proceedings under the section were not taken; third, that the dhab, concerning which the Magistrate has made an order maintaining the possession of the second party, was not included in the land in dispute, and concerning which the parties were directed to put in written statements.
4. The first contention is, we think, erroneous. Section 530 declares that if a Magistrate, not duly empowered by law, makes an order under chapter -XII his proceedings shall be void; but this we think clearly refers to a Magistrate who is not a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class. The Code contains provisions for the transfer by a District or Sub-Divisional Magistrate of any case of which he had taken cognizance for enquiry or trial to any Subordinate Magistrate duly empowered to deal with it (section 1 92); for the withdrawal by a District or Sub-Divisional Magistrate of any case which he had made over to any Magistrate for enquiry or trial, and the making over of such case to any other competent Magistrate for enquiry or trial (section 528); for the inquiry into, or trial of, any case in which the Magistrate who has heard the whole or part of the evidence ceases to exercise jurisdiction and is succeeded by another Magistrate (section 350). The general power conferred upon a District or Sub-Divisional Magistrate to transfer or withdraw any case for enquiry or trial is not, we think, taken away or cut down by anything in Section 145. A proceeding under chapter XII is an enquiry within the meaning of Section 4 of the Code, nor can we see any reason for putting upon Section 145 the narrow construction contended for. If that construction is right, it would follow that if the Magistrate who made the initial order died, or was transferred, or was incapacitated from any cause for going on with the enquiry, the proceeding must drop. This would frustrate the whole object of the section, which is to prevent a breach of the peace by determining, if possible, the fact of actual possession at the time when the order for enquiry was made. The power of transfer conferred upon Magistrates and Sub-Divisional Magistrates is a general power, and unless cases under chapter XII are expressly excluded, it must extend to them also. It is argued that Section 192 applies only to criminal cases, as it occurs in a chapter which deals with offences, and the preceding section relates to the cognizance of offences The words are, however, quite wide enough to include cases under chapter XII. We may observe also that in the Code of 1872, Section 44, which is the section corresponding to Section 192, provided only for the transfer of "criminal cases." By the amending Act XI of 1874 the word "criminal" was struck out, and it has been omitted from all the subsequent enactments.
5. As regards the second point we think it unnecessary to refer to all the cases" which have been cited, as we think that the Magistrate in his preliminary order under Section 145 set out ample grounds to justify proceedings under that section. Neither party showed, or even alleged, that the Magistrate had been misled in the information on which he acted, and that there was no danger of a breach of the peace arising from the dispute. The third contention has no solid foundation, and the objection is not the one which coming from the petitioner we can listen to. The proceeding itself leaves it doubtful whether the dhab was included in the disputed land, but the map which the Magistrate attached to it showed that it was included. In the course of the enquiry the second party objected to the inclusion of the dhab, but the first party insisted that it was part of the land in dispute and covered by the proceeding, and it was so treated in the enquiry. Now that possession has been proved to be with the second party, the first party brings forward this objection, which under the circumstances we cannot but call impudent.
6. It has also been urged that the Magistrate ought to have found on the evidence that the first party was in possession. This is a matter which we decline to go into. The Magistrate has criticised the whole evidence on both sides, and says he cannot satisfy himself as to which party is in possession. Under these circumstances he has made the order which the law empowers him to make. The rule is discharged.
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