1. This is a particularly striking instance of the distorted views almost universally held of the scope and object of section 145 of the Cr PC, which in this case are shared by a District Magistrate of experience. If a constable sees two men quarrelling over the right to be in a particular angan and likely to come to blows over it, he has to decide which got there first on that particular occasion, and to put the other out, and he has to decide quickly which to put out. He may choose the wrong person, but that cannot be helped because his decision must be immediate. It also does not matter unless the person pushed out, who really got there first, is also the person who has the better right to be there, and then only to the extent of putting the other in a slightly stronger position in the eventual settlement of the dispute by the proper authorities. It is ridiculous to suggest that before taking steps to stop the fight by ejecting one of the two men, the constable must find out for certain which of them has the right to be in the angan or even that he should spend much time in finding out for certain which of them got there first on that particular occasion.
2. If the constable thought that there was not likely to be a fight at all and did nothing, and his inaction was justified by the fact that no fight ensued, it would be still more ridiculous if his Inspector reported the matter to the District Superintendent of Police some time later, and recommended that the constable should be ordered to hold an enquiry into the question of who actually did get there first that day, merely for the purpose of giving the right man the stronger position of defendant in the subsequent investigation of the rights of the case, although the dispute had not ended in a breach of the peace and was therefore even less likely to do so in future than it had been at the beginning. That however is really what has happened in this case. As long ago as the 9th of October, 1923, Phutania Telin put in an application through a Barrister stating that Kripal her deceased husband's brother had from some unspecified date in the month of Sawan which ended on the 26th of August, been in actual though wrongful possession of land belonging to her minor son, whose guardian she is, and was excluding her from possession. The facts stated further indicate fairly clearly that Phutania and her brother-in-law had been in joint possession of the land, on behalf of the minor for at least two years, as it is admitted, though with obvious reluctance, that the names of both of them had been recorded in the jamabandi as co-tenants for the last two years. But what is perfectly clear from the petition is that there was not the least chance of any breach of the peace unless Phutania herself started it by endeavoring to assert he rights by force, and even of that there was practically no chance at all.
3. Any person is entitled to use force within limits for the protection of his property against forcible invasion, and also to say that he intents to do so in the event of an apprehended forcible invasion being made. But he has no right to use force for the recovery of his property, and the situation becomes grotesque when be goes to a Magistrate and says he intends to do so and apprehends there will be a fight over the matter, as the party in possession is sure to resist, and asks the Magistrate to prevent it. He must go to a Civil Court to regain possession or get his possession confirmed; obviously the only thing for the Magistrate to do on such an application would be to bind over the applicant to keep the peace.
4. The prayers in Phutania's petition are that the Magistrate should “protect her possession” and should “prevent the breach of peace which is bound to bake place if unchecked,” and further would accord proper and adequate chastisement to the Patwari who colluded with the non-applicant in making such a false entry in such dark circumstances of which the applicant knew when she gob copies of jamabandi in order to file this application viz., 10th September, 1923.” As an application for action under section 145 of the Cr PC this is little short of ludiorous.
5. The chastisement of the Patwari is of course entirely outside the case. Nor is the proteotion or maintenance of anybody's possession one of the objects of the section. That, so far as the section is concerned with it, is entirely subsidiary to its sale object of preventing an imminent breach of the peace, and a decision in regard to it, right or wrong must be made at once. If it is delayed in order to make sure of its being right, either the breach of the peace occurs before it is given, or else the fact that it does not occur proves that there was never any likelihood of it.
6. The Magistrate to whom this application was made passed a preliminary order under section 145 at once. There are many signs in that and the other orders passed on the same day of the misconceptions that are so rife in these cases. In the first place venture to doubt whether the learned Magistrate ever believed for a moment that there was any likelihood of a breach of the peace, as even a casual perusal of the petition shows that there was not, and that the applicant's only object was to use the Magistrate's Court as a cheap and quick substitute for the Civil Court. Process was then ordered to issue to the “non-applicant” at the expense of the “applicant”. In the very nature of the case there is neither applicant nor non-applicant in ib. The Magistrate bakes action on behalf of the Crown, on a report made to him, against all other parties concerned, and it is clear that all processes should issue at Government expense, and the parties originally mentioned and any others that may come in labor should be ranged on one side as the First Party and the Second Party and so on.
7. The report to the Magistrate in such a case would ordinarily be made by the police, though it may be made by one of the parties to the dispute or anybody else. But if Magistrate really believed such a report by a private person, he would also necessarily believe that the local police knew nothing of the imminence of a breach of the peace so serious that they could not prevent it themselves, or knowing of it had failed to report it to him for more effective action than they could bake themselves; that would indicate inefficiency calling for very drastic action. I venture to say that it is a safe general rule for a Magistrate to refuse to bake action at all in such a matter except on a report from the police, and that should not be a mere forwarding of a report made to the police by one of the parties, even with a record of the enquiry made by a police officer in the matter, but a definite statement of opinion by a responsible officer that he apprehends that there will be a disturbance which he cannot prevent himself and he therefore desires the exercise of the higher powers of the Magistrate to prevent it. The absence of such a report is an almost conclusive indication of the absence of any likelihood of a breach of the peace, unless the police officers concerned are hopelessly inefficient.
8. The first notice issued to the “non-applicant” was not served, and the “applicant” had to pay further fees for the issue of a second notice. Even so it appears that there was no publication of the order as required by clause (3) of section 145. These are however only some more of the indications which appear throughout the case that everybody concerned regarded the Magistrate as acting primarily, if not entirely, to decide a dispute between the parties, even if he were concerned incidentally with the prevention of a possible breach of the peace arising out of that dispute.
9. A Magistrate other than the one who had made the preliminary order heard the, case. He read the written statements put in by Phutania and Kripal and refused to adjourn the case for the production of evidence of her possession by Phutania because in his opinion the case was so clear that no evidence was necessary. He then came to the obviously correct conclusions on Statements of both parties that both of them were in possession of the land, Kripal having been let into possession by Phutania with herself, and that there was and always had been “absolutely no probability of a breach of the peace”. For these reasons he passed an order, which is in effect an order staying all further proceedings under sub-section (5) of section 145, though his calling it a rejection of the application is an indication that even he was not entirely free from the misconceptions that have been mentioned.
10. Application was then made to the District Magistrate on behalf of Phutania that the Magistrate's “order be set aside and the case remanded for further enquiry on the point of actual possession of the lands in suit”. The last word shows clearly enough the light in which the case was regarded. This is clear still from the mention in the original petition of the date, exactly one month before the filing of that petition, on which Phutania is alleged to have discovered for the first time that Kripal's name had been entered in the jamabandi along with hers for the last two years. But the most remarkable fact about the petition to the District Magistrate is that there is no mention in it of any possible or probable breach of the peace; the main, indeed the only, grievance put forward is that the Magistrate shut out the evidence of possession offered by Phutania, (which on the statements already made by her could not be evidence of possession at all but only evidence of right) and refused to decide the question of possession. After hearing the parties the learned District Magistrate decided that he had not the power to order a further hearing of the case himself and reported it to this Court. The order of reference is as follows:—
“I have examined the record and heard the pleaders. The Magistrate disallowed the applicant to adduce evidence because he thought the case was very clear. In his order, dated 19th December, 1923 he held there was absolutely no probability of a breach of the peace. In view of the allegations made and the shutting out of evidence there are no materials on which this finding can be based. Further, although the record in Patwari papers may be presumptive evidence of Kirpal's possession, the presumption can be rebutted by other evidence which was disallowed. I am of opinion that a fresh enquiry should be ordered and the case decided on its merits, after the parties have adduced evidence.”
11. What has already been said is enough to show that such an order as is suggested is both unnecessary and impossible. I need only add that if the learned District Magistrate was of opinion that there really was a likelihood of a breach of the peace when the case was before him, it was obviously his duty to institute fresh proceedings under section 145 to prevent it without delay. That is the only object of that much abused section and it certainly could not be attained by waiting till the orders of this Court could be obtained for the continuance of proceedings which began nearly six months before. I decline to interfere.
12. Revision refused.