HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. M.Cr.C. No.2053/2008 Nathu and another VERSES Shriram and others -------------------------------------------------------------------------------------------------- Shri Rajmani Singraul, Advocate for the applicants. None for the respondents. -------------------------------------------------------------------------------------------------- O R D E R 15/02/2011 1. This petition under Section 482 of Cr.P.C. is filed by the applicants being aggrieved by order dated 08.02.2008 passed by Additional Sessions Judge, Panna in Criminal Revision No.74/2007 whereby order dated 09.07.2007 passed by S.D.M., Ajaygarh under section 145 of Cr.P.C. has been quashed on the ground that there was no apprehension of breach of peace regarding House No.261, Ward No.17 located at Village Echolia, Police Station Dharamapura as well as applicant was not dispossessed by the respondent from the disputed house. 2. The applicants submitted a complaint before S.D.M., Ajaygarh on 22.07.2007 under Section 145 of Cr.P.C. stating that they are in possession of House No.261 located at Ward No.17 at village Echolia, on 01.07.2004 when they went to their agriculture field respondents No.1 to 3 damaged the roof and wall of their house, used filthy language and put their lock on this house. On 02.07.2004 applicant No.2 lodged a report before police station Dharampura but no action was taken by the police. On 06.07.2004 wife of applicant No.2 lodged a report in police Station Dharampura but no action was taken. Applicants made complaint to the Sarpanch and other villagers but the whole exercise was futile. Then applicant filed an application under Section 145 of Cr.P.C. before S.D.M. on 21.07.2004. The S.D.M., Ajaygarh passed a preliminary order on 18.10.2004 that there was apprehension of breach of peace and attached the house under Section 146(1) of the Cr.P.C. and directed S.H.O. Dharampura to handover the possession of the house to some independent person. Thereafter the statement of applicants/non-applicants both the parties and their witnesses were recorded, documents were filed and Sarpanch of Gram Panchayat Rajapur and villagers submitted panchnamas and on the basis of aforesaid evidence and document learned S.D.M. held that applicants were wrongfully dispossessed within two months next before the date on which the report was lodged and respondents were directed not to interfere in the possession of applicants except due process of law. 3. Learned Additional Sessions Judge vide impugned order opined that there was no apprehension of breach of peace regarding disputed house and learned S.D.M. has committed a mistake while holding that applicants were in possession of the disputed house and quashed the order. 4. The validity of the aforesaid order passed by revisional Court has been called in question in this revision petition. 2 5. Both the parties were heard and record of the court below was perused. 6. After hearing the parties, I am of the opinion that this Court must maintain the order dated 09.07.2007 passed by S.D.M., Ajaygarh. 7. Section 145 of Cr.P.C. is intended to provide a special remedy for the prevention of breach of peace arising out of a dispute relating to immovable property. Its primary object is to maintain the public peace and not to decide the dispute between the contending parties or adjudicate upon the rights of parties to the possession. 8. Applicants Nathu has lodged a report in police station Dharampura on 02.07.2004 that respondents have taken possession of the disputed house and put their lock. Further on 06.07.2004 wife of the applicant No.2 again lodged a report in police station Dharampura but no action was taken but the police authorities thereafter on 21.07.2004 applicants alleging aforesaid fact filed a complaint under Section 145 of Cr.P.C. before S.D.M., Ajaygarh who vide order dated 18.10.2004 opined that both the parties are claiming possession on the disputed house and there is apprehension of breach of peace. 9. It is settled position that if there should be something to show that there were grounds before the Magistrate when he passed the preliminary order (that there should be dispute relating to land or water and it should be likely to cause a breach of the peace). The Magistrate is entitled to arrive at 3 satisfaction on the basis of the Police report or other information which may be only the application of the complainant. The question whether the material before the Magistrate was sufficient or not can not be examined by the High Court as the satisfaction under section 145(1) is that of the Magistrate, whether on the material before him he should initiate the proceedings or not is his discretion. No doubt, he has to exercise this jurisdiction in accordance with the recognized rules of law in that behalf. The Magistrate has to draw the preliminary order on the basis of the police report or other information. What that "other information" should be is entirely a mater which he has to decide." "It is advisable for the Magistrate to record the grounds of his being satisfied as required by section 145 of the Criminal Procedure Code, 1898 separately, but it he is satisfied by reading the police report or the application, it is not obligatory for the Magistrate to record the grounds separately or examine the applicant. First he has to read the report or the application and he may examine the applicant and then pass the preliminary order." 10.It is obligatory for the S.D.M. to start a proceeding under Section 145 of Cr.P.C. when he received information and is satisfied that the dispute likely to cause breach of peace exists. 11. There is no quarrel to the proposition laid down in the case of Shankarlal Vs. State of M.P. 1994 MPLJ 753 that if the possession of a party is found within two months from the date of passing of preliminary order, that party, though dispossessed should be in possession but the moot question in 4 that present case is that which party was in possession within two months from the date of preliminary order. 12.The learned S.D.M. has called a report from Police Station Dharampura and both the parties submitted documents and produced their evidence and panchnamas. Further possession of Babulal on disputed house is prima facie proved by the panchnama dated 20.07.2004 given by Sarpanch of Gram Panchayat and further an old aluminum plate of Gram Panchayat Icholiya also reveals that disputed house No.261 of village Echoliya was recorded on the name of applicant Babulal S/o Bhaggu Lodh. Thus S.D.M. has rightly given finding in favour of the applicants and revisional court erred in reversing the order dated 09.07.2007 passed by S.D.M. Ajaygarh. 13.For the reasons stated hereinabove, this petition is allowed. The impugned order passed by A.S.J. Panna is quashed and the order dated 09.07.2007 passed by S.D.M. Ajaygarh is restored. The possession of House No.261 located at Ward No.17 of village Echoliya be handed over to applicants by S.D.M. Respondents will not make any interference in the possession of the applicants till they obtain any order or judgment from the civil court. 14.Accordingly, this M.Cr.C. is allowed. (S.C. Sinho) Judge Psm 5