http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: RAJPATI

       Vs.

RESPONDENT: BACHAN & ANR.

DATE OF JUDGMENT28/07/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SEN, A.P. (J)

CITATION:  1981 AIR   18            1981 SCR  (1)  92

ACT:      Criminal Procedure  Code, Section  145-Recording in the final order  that it  was breach  of peace is not necessary, once such  a recording  has been  made  in  the  preliminary order-Omission to  do so  is an  error of  procedure falling within the domain of a curable irregularity.

HEADNOTE:      Allowing the appeal by special leave, the Court, ^      HELD: (1) A finding of existence of breach of the peace is not  necessary at  the time  when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring  such  a  finding  in  the  final  order.  Once  a preliminary order  drawn up  by the  Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary  that the  breach of  peace should continue at every stage of the proceeding unless there is clear evidence to show  that the dispute has ceased to exist so as to bring the case  within the  ambit of  sub-section (5) of s. 145 of the Code  of Criminal  Procedure. Unless  such a contingency arises the  proceedings have  to be carried to their logical end culminating  in the  final order  under sub-s. (6) of s. 145. Further, it is well settled that under s. 145 it is for the Magistrate  to be satisfied regarding the existence of a breach of  the peace and once he records his satisfaction in the preliminary  order, the High Court in revision cannot go into the  sufficiency or  otherwise of  the materials on the basis of  which the satisfaction of the Magistrate is based. [94C-F]      R. H.  Bhutani v.  Miss Mani  J. Desai & Ors., [1969] 1 S.C.R. 80, followed.      Hari Ram  & Ors.  v. Banwari  Lal &  Ors., A.I.R.  1967 Punjab 378; Ramarao v. Shivram & Ors., A.I.R. 1954 Hyderabad p. 93, approved.      (2) Mere  absence of  a finding  of  the  existence  of breach of  the peace by the Magistrate in the final order in the circumstances  of the  case cannot  be such  a  manifest defect so  as to  attract the  extraordinary jurisdiction of the High  Court under  Section 482 of the Criminal Procedure Code. [94B]      (3) At  the worst  the omission  on  the  part  of  the Magistrate to  mention in  his final  order that  there  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

breach of  the peace  could  be  said  to  be  an  error  of procedure clearly  falling within  the domain  of a  curable irregularity which  is not  sufficient to  vitiate the order passed by the Magistrate, particularly when there is nothing to show,  in the instant case, that any prejudice was caused to any  of the  parties who  had  the  full  opportunity  to produce their evidence before the Court. [95B-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 474 of 1980. 93 Appeal by  Special Leave  from the  Judgment and Order dated 26-9-1979 of the Allahabad High Court in Crl. Misc. Case No. 356/79.      Pramod Swarup for the Appellant.      R. D.  Upadhyaya  and  M.  M.  L.  Srivastava  for  the Respondent No. 1.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal  by special leave involves a short point  of law. Proceedings under s. 145 was started by the Magistrate  against the  respondents on  the basis  of a police report. After passing a preliminary order on the 29th July, 1976  (wherein the Magistrate had recorded reasons for his being satisfied that a breach of the peace existed), the Magistrate called  upon the  parties to  file their  written statements and  then after  a full enquiry as provided by s. 145 the Magistrate passed the final order on 17th July, 1978 declaring the  appellant to  be in possession of the land in dispute. Against  this order, the respondents moved the High Court under  s. 482  Cr.P.C. for  quashing the  order of the Magistrate. The  High Court found that as there was no clear finding by  the Magistrate in the final order that there was an apprehension of breach of the peace, therefore, the final order was  bad and  the High  Court accordingly  allowed the petition and remitted the case to the Magistrate.      We have  heard counsel  for  the  parties  and  in  our opinion the High Court erred in holding that the final order of the  Magistrate was vitiated in absence of a finding that breach of  the peace  existed at  the  time  the  order  was passed. It  is not  disputed that  in the  preliminary order there  was   a  clear   finding  by   the  Magistrate   that apprehension of  breach of  the peace  did exist  which  was sufficient  to   give  jurisdiction  to  the  Magistrate  to initiate the  proceedings.  When  the  parties  filed  their written statements,  they did  not  state  that  no  dispute between the  parties existed but whereas one party said that there was  no apprehension  of breach  from their  side, the other side  took the stand that there was an apprehension of breach of the peace.      Thus,  the   stand  taken   by  the   two  parties  was contradictory; hence  it must  be taken for granted that the apprehension of  breach of  peace continued  to exist and it was not  a case  where it  could be  said  that  no  dispute existed, as contemplated under s. 145(5) Cr.P.C.      After considering  the record  and evidence produced by the parties, the Magistrate passed the final order in favour of the appellant.      The High Court thought that it was absolutely essential for the  Magistrate to give a finding that a breach of peace existed even in 94 the final  order. It  may have been proper if the Magistrate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

had given a finding on this aspect of the matter also but in the  circumstances,   it  can   be  safely   presumed   that apprehension of  breach of  peace existed and such a finding was implicit  in the final order passed by the Magistrate so it was  not necessary  for the  Magistrate to repeat what he had said  in the  preliminary order in the final order also. Moreover, mere  absence of  finding by the Magistrate in the final order  in the  circumstances as mentioned above cannot be such a manifest defect so as to attract the extraordinary jurisdiction of the High Court under s. 482 of Cr.P.C.      It is,  therefore, manifest that a finding of existence of breach  of the  peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal  Procedure requiring such a finding in the final order. Once  a preliminary  order drawn up by the Magistrate sets out  the reasons for holding that a breach of the peace exists, it  is not necessary that the breach of peace should continue at  every stage  of the proceedings unless there is clear evidence  to show that the dispute has ceased to exist so as  to bring the case within the ambit of sub-section (5) of s.  145 of  the Code of Criminal Procedure. Unless such a contingency arises  the proceedings  have to  be carried  to their logical  end culminating in the final order under sub- s. (6)  of s.  145. As  already indicated  the contradictory stands taken  by the  parties clearly show that there was no question of  the dispute  having ended  so  as  to  lead  to cancellation of  the order  under sub-section  (5) of s. 145 nor was  such  a  case  set  up  by  any  party  before  the Magistrate or  before the  High Court.  Further, it  is well settled that  under s.  145 it  is for  the Magistrate to be satisfied regarding  the existence  of a breach of the peace and once  he records  his satisfaction  in  the  preliminary order, the  High  Court  in  revision  cannot  go  into  the sufficiency or  otherwise of  the materials  on the basis of which the  satisfaction of the Magistrate is based. In R. H. Bhutani v.  Miss Mani J. Desai & Ors.(1), this Court pointed out as follows:           "The section  requires that the Magistrate must be      satisfied before  initiating proceedings that a dispute      regarding an  immovable property  exists and  that such      dispute is likely to cause breach of peace. But once he      is  satisfied  on  these  two  conditions  the  section      requires him  to pass  a preliminary order under sub-s.      (1) and  thereafter to make an enquiry under sub-s. (4)      and pass  a final  order under  sub-s. (6).  It is  not      necessary that  at the  time of passing the final order      the apprehension  of breach of peace should continue or      exist. The enquiry under s. 145 is limited to the 95      question to who was in actual possession on the date of      the preliminary order irrespective of the rights of the      parties... The  High Court,  in  the  exercise  of  its      revisional jurisdiction, would not go into the question      of sufficiency  of material  which  has  satisfied  the      Magistrate."                                             (Emphasisours)      In Hari Ram & Ors. v. Banwari Lal & Ors.(1) it was held that once a Magistrate finds that there is a breach of peace it is  not necessary  that the  dispute should  continue  to exist at  other stages  of the  proceedings  also.  In  this connection, the High Court observed as follows:           "Of course,  Magistrate can  under sub-section (1)      of s. 145, Criminal Procedure Code, assume jurisdiction      only if he is satisfied that at the time of passing the      preliminary order a dispute likely to cause a breach of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

    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."                                               (Emphasisours)      To the  same effect is a decision of the Hyderabad High Court in  Ramarao v.  Shivram & Ors.(2) where Srinivasachari J. observed as follows:-           "As regards  this contention  I am of opinion that      once the  Magistrate has  given a finding to the effect      that there  is apprehension of breach of peace and that      he has  jurisdiction to  take proceedings under s. 145,      Cr.P.C., he  can continue  the proceedings.  It is  not      necessary that  at each  stage he  should be  satisfied      that there exists an imminent apprehension of breach of      peace."                                               (Emphasisours) 96      We  find  ourselves  in  complete  agreement  with  the observations made  by the  Punjab and Hyderabad High Courts, extracted above,  which lay  down the  correct  law  on  the subject.      Assuming, however,  that there  was an  omission on the part of  the Magistrate  to mention  in his final order that there was  breach of  the peace,  that  being  an  error  of procedure would  clearly fall within the domain of a curable irregularity which  is not  sufficient to  vitiate the order passed by the Magistrate, particularly when there is nothing to show in the instant case that any prejudice was caused to any of  the parties  who had the full opportunity to produce their evidence  before  the  Court.  It  was  therefore  not correct on  the part  of the  High Court  to have interfered with the  order of  the Magistrate  on  a  purely  technical ground when  the aggrieved  party had  a clear remedy in the civil court.      For these  reasons therefore, we are satisfied that the order passed  by the  High Court  is legally  erroneous  and cannot be  allowed  to  stand.  The  appeal  is  accordingly allowed. The  order of  the High  Court is set aside and the order of the Magistrate is confirmed. V. D. K.                                     Appeal allowed. 97