Delhi High Court
Narayan Kumar vs State & Anrs. on 3 July, 2015
Author: Ashutoshkumar
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.2454/2013 & CRL.M.A.9432/2013
Date of Decision: 03.07.2015
NARAYAN KUMAR ..... Petitioner
Through Mr. Udai Raj Singh, Adv.
versus
STATE & ANRS. ..... Respondent
Through Mr. Pramod Saxena, APP.
SI Ravi Shankar, PS Saket.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ORDER
% 03.07.2015
1. The petitioner has sought quashing of the notice dated
02.03.2012 under Section 145 of the Code of Criminal Procedure
(hereinafter referred to as 'Code') issued by the SDM on the basis of a
report by Police Station Ambedkar Nagar, regarding apprehension of
breach of peace as a result of dispute over possession of House
No.6/108, DDA Flats, Madangir, New Delhi.
2. The notice, under challenge, reads as under:
" Notice
A Kalandra under section 145 of Cr.P.C received from
Police Station Ambedkar Nagar regarding possession of
H.No.6/108 DDA Flat Madangir.
You are hereby show cause to appear before this Court
either in person or through pleader on 19.03.2012 for
maintainability of this case."
3. From the perusal of the notice, it appears that the petitioner and
Respondent no.2 were called by the Magistrate for showing the
maintainability of this case. The notice does not state about any
apprehension of breach of peace as a result of the dispute over
possession, or the satisfaction of the Magistrate about the existence of
any emergency.
4. The police report which is annexed as P1 to the petition refers
to dispute over a dilapidated residential house, not worthy of living. It
further refers to the respective claim of the parties and the fact that the
petitioner has already filed a case before the Civil Court for specific
performance.
5. Section 145 of the Code falls under Chapter X which deals with
the preventive jurisdiction of the Magistrate.
6. Section 145 (1) of the Code reads here as under:
"145(1) Whenever an Executive Magistrate is satisfied
from a report of a police officer or upon other
information that a dispute likely to cause a breach of
the peace exists concerning any land or water or the
boundaries thereof, within his local 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, on a specified date and time, and to put
in written statements of their respective claims as
respects the fact of actual possession of the subject of
dispute.
7. To initiate a proceeding under Section 145 of the Code, what is
required is that there should be a likelihood of breach of peace because
of the dispute and that the Magistrate ought to be satisfied from the
materials on record, which could be the police report or any other
information, that such emergency exists.
8. It is essential for the assumption of jurisdiction by the
Magistrate that he should be satisfied about the likelihood of breach of
peace. The requirement of law is very clear that the Magistrate shall
record an order in writing, stating the grounds of his satisfaction
before requiring the parties concerned in such dispute to attend his
court in person or by their pleader.
9. Though every fact need not be stated by the Magistrate under
Section 145(1) of the Code but such satisfaction ought to be of a
speaking nature. The preliminary order, therefore, is required to be
passed as to the grounds for assuming the jurisdiction. Dispute per se
may not be a ground for apprehension of breach of peace.
10. The term 'satisfaction' is of considerable importance and is
extremely expansive. It connotes absence of any doubt or uncertainty.
11. The notice merely states that the parties ought to appear before
the learned Magistrate for showing the maintainability of the case.
This, the court is afraid, is not the requirement under Section 145(1) of
the Code.
12. Unless the Magistrate is satisfied about the existence of
apprehension of breach of peace because of the dispute, there could
not be any assumption of jurisdiction under Chapter X of the Code.
13. Learned counsel appearing for the petitioner submits that the
police was informed about the existence of a proceeding before the
Civil Court, even though for Specific Performance, nonetheless the
conclusion of such proceeding would conclude the dispute about the
title and possession of the property. Such statement was also made
part of the police report.
14. If the Magistrate was doubtful about initiating proceeding or the
maintainability of the proceeding, the parties ought not to have been
noticed to stake their claim over the property.
15. The requisite satisfaction of the Magistrate, being non-existent
which is evident from the notice as the parties have been summoned to
establish the maintainability of the proceeding, vitiates the entire
proceeding.
16. The records reveal that cases have been filed by the parties
against each other. The suit for specific performance being suit
No.549/2010 is still pending before the competent Court of Delhi. In
the aforesaid proceeding, a local commissioner had also been
appointed to ascertain the physical possession.
17. Learned counsel for the respondents, however, with respect to
the pendency of a civil case, submitted that in the suit for specific
performance, namely 549/2010, he is not a party, and has prayed to be
impleaded thereon.
18. Mr. Mehra, learned Standing counsel submitted that the dispute
over the property is such that it is led to lodging of three First
Information Reports. Apprehension of breach of peace does exist and
determination of possession and not the title was, therefore, required
to prevent any such breach of peace. It was for this reason that the
police, in their report, prayed for issuance of an order for sealing of
the property.
19. There is no cavil on the proposition of law that while assuming
jurisdiction under Chapter X of the Code, the Magistrate is duty bound
to record his satisfaction about the existence of breach of peace. The
satisfaction note could be brief or descriptive, but it should speak out
the mind of the learned Magistrate. The wordings of the notice under
challenge is reflective of non-satisfaction as parties have been
summoned for discussion over maintainability of the proceedings.
20. Considering this aspect of the matter, the proceedings before the
SDM was stayed vide order dated 17.06.2013 by this Court. It is also
relevant to indicate that the notice for initiation of the proceeding
under Section 145 was stayed way back in the year 2013 and since
then, there has not been any untoward incident leading to breach of
peace. Whatever skirmishes between the parties took place, FIR was
promptly registered by the police.
21. Be it noted, that for passing a final order under Section 145 of
the Code with respect to the possession of the property, there may not
be any requirement of the existence of emergency. Nonetheless, since
the initiation of the proceeding is found to be defective, it cannot be
sustained in the eyes of law.
22. For the reasons aforesaid, this application must succeed.
23. Notice dated 02.03.2012 is quashed.
24. Needless to say that if any emergency erupts, proceedings could
be initiated afresh but only in accordance with law.
25. This petition as well as application stand disposed of
accordingly.
(ASHUTOSH KUMAR)
Judge
JULY 03, 2015/ab
