Madho Singh vs Ladan And Anr. on 3 April, 1974

Rajasthan High Court
Madho Singh vs Ladan And Anr. on 3 April, 1974
Equivalent citations: 1974 (7) WLN 280
Author: B Beri
Bench: B Beri


B.P. Beri, C.J.

1. This is a revision application directed against the order of the Sub-Divisional Magistrate, Churu, dated October 22, 1973, in a proceeding under Section 145 of the Code of Criminal Procedure.

2. On October 22, 1973, an application was presented before the Sub-Divisional Magistrate, Churu, by Mst. Ladan widow of Khangsingh and Mst. Sajana widow of Dungarsingh. The latter is the mother-in-law of the former. The application was directed against one Madhosingh and it was unequivocally alleged that the field bearing khasra No. 223 measuring 35 Bighas and 9 Biswas situate in Rohi Dulrasar, Tehsil Sardar Shahar, District Churu. was in their possession and was being cultivated by them. Exploiting the helpless condition of the two widows. Madhosingh was threatening forcible entry into the field and was declaring that he will take away the crop. This occasioned, according to the petitioners, an apprehension of a breach of the peace and the labourers of the widows deserted their work. It was also prayed that the property in question may be attached and a Receiver be immediately appointed. The application is signed by the counsel for the two widows and along with the petition two copies of the ‘Jamabandi’ from Samvat years 2027 to 2030 and ‘Khasra Girdawari’ for the Samvat years 2028 and 2029 were appended. After perusing the petition, the learned Sub-Divisional Magistrate in view of the documentary evidence felt satisfied that there was imminent danger of a breach of the peace and he passed a preliminary order, attached the property–the subject-matter of dispute–and issued a notice to the opposite party Madhosingh to show cause and answer on 1-11-73. Dissatisfied with this order. Madhosingh has come up to this Court in revision.

3. The learned Counsel for the applicant’s first submission is that the application without the affidavit substantiating the contents thereof was not enough for the drawing up of a preliminary order. Secondly, the application ought to have been signed by the parties concerned. In support of his submission he relies on Emperor, v. Munnilal. AIR 1935 Nag 78 and Ahsan Sofi v. Sona Mir AIR 1958 J and K 17 : 1958 Cri LJ 635 (FB). The learned Additional Advocate-General appeared to support the order of the learned Sub-Divisional Magistrate.

4. The relevant portion of Section 145 Code of Criminal P.C. reads:

Whenever a Sub-Divisional Magistrate is satisfied from a police-report or other information that a dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

These are the exact words which are material for my purpose. What is important is the “satisfaction” of the Magistrate, All that I am called upon to see at this stage is: whether the Magistrate was satisfied. A perusal of the order of the learned Magistrate dated October 22. 1973 employs the following words, after referring to the documentary evidence and the contents of the petition–and then, he passed the order of attachment and appointed a Receiver. All that the law requires is that there should be a report or an information in the truth whereof the Magistrate comes to put his faith about the existence of a dispute which is likely to endanger a breach of the peace. An affidavit may or may not even inspire the requisite faith. The law does not require it. The Nagpur case AIR 1935 Nag 78 merely lays down that the police before it refers must inquire and satisfy the Magistrate that a dispute likely to cause a breach of the peace exists, and merely sending a report of the party without any application of its own mind in a matter of routine was not what was intended under Section 145(1) of the Code of Criminal P.C. This case does not help the learned Counsel. The other case of Jammu & Kashmir AIR 1958 J & K 17 : 1958 Cri LJ 635 (FB) arose in altogether different circumstances. No preliminary order was drawn in that case by the trial Magistrate. He simply repeated the contents of the application made before him and then directed that under Sub-section (4) of Section 145 the police should attach the tree. This was no compliance with Section 145. This case also does not help the learned Counsel for the applicant.

5. I may refer to a case reported in Faqir Chand v. Bhana Ram AIR 1957 Puni 303 : 1957 Cri LJ 14501 cited by Mr. Shrimal, the relevant observations made therein read as follows:

The purpose of Section 145 and allied provisions is to prevent the immediately apprehended, breach of the peace….

The provisions as to stating the grounds of the Magistrate being satisfied as to there being an apprehension of a breach of the peace is mandatory….” but, in regard to the satisfaction, the learned Judge has observed that the term “satisfied” is of considerable expansive-ness which means, free from anxiety, doubt, perplexity, suspense or uncertainty. All that is necessary is that the Magistrate must be satisfied that there is a dispute in regard to the objects mentioned in Section 145 and that the dispute is likely to endanger the peace.

6. The absence of the signature of the party concerned came to be considered by Vivian Bose A. J. C. as he then was in Madho Kunbi v- Tilak Singh. AIR 1934 Nag 194 : 35 Cri LJ 1460 and he has observed.

Where therefore, along and detailed application signed by pleaders and the applicant sets out the history of the dispute and also the property, which is its subject-matter, and proceeds to give particulars about, the incidents which are likely to lead to a breach of the peace and the Magistrate believing the information passes a preliminary order, he acts not without jurisdiction.

I am prepared to say that it is proper that the signature of the party and not of the party’s counsel should be obtained in order to make the party answerable in the event of there being any falsehood but failure to do so is neither a flagrant violation of law which has resulted in miscarriage of justice nor an error so manifest as to warrant any interference in my revisional jurisdiction.

7. With these observations, this revision application fails and is dismissed.

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