R. H. BHUTANI versus MISS MANI J. DESAI & ORS.

Citation: [1969] 1 S.C.R. 80 · Decided: 23-04-1968 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

R. II. BHUTAl'lll 
A 
v. 
MISS MANI J. DESAI & ORS. 
April 23, 1968 
[S. M. S1KRI, J. M. SHELAT AND V. BHARGAVA, JJ.) 
B 
Code of Criminal Procedur, (Act 5 of 1898), s. 145-SatiS/actlbn. 
of the MaRistratc u11der sub-s. (I )-Rcquiremenl for recording reasons 
whrn satisfied- Calling far police report whether necessary b!/Ore re. 
cordinR prelilninary order-Completion of dispossession before dare of 
prt·litninary order H·herher means that tfirre is no existing dispute 1vith-
in the meanin11 of sub-s. (I). 
The appellao: occupied an office cabin in Bombay on leave and 
licence from respondent No. I. In an applicati-on under s. 145 of the 
Code of Criminal Procedure the appellant alleged that on June 11. l 966 
respondent No. 1 wron~fully took possession of the cabin 
and j:!ave it 
to respondents 2 and 3 who forcibly prevented his re.entry. He also 
lodged a rcpQrt of ·!he incident with th,. police as a result of which 
respondent No. I v.:a.c; arrested for an offence under s. J51 Indian Penal 
Code hut was released on bail. 
Respondent No I ftled a civil suit and 
1ook out a notice of motion for restraining the appellant· from interf'ering 
with the possession of ·!he cabin, but the sam~ was dismissed. 
The 
\iagistrate ·trying the application under s. 145 of the Code of Criminal 
Procedure passed a preliminary order on June 20. 1966 recording his 
satisfaction that a dispute existed. 
After considering the affidavits and 
the evidence led by the parties the Magistrate accepted the appellant's 
ve"lion of faO'.s and on June 22. 
1967 pas.•ed the 
final order 
under 
sub-s. (6) directing restoration of pos;ession to the appellant till evicted 
in due course of law. 
l1lc High Court in revision set aside the order 
of the Magistrate on the 
following grounds: Ii) That dhe Magistrate 
had not recorded his reason. for passing the preliminary order; {ii) that 
the Magistrate had passed the said order without calling for a police 
report. merely on the basis of the appellant's allegations: (iiil That the 
dispossession of ':he appellant was completed and a report of assault was 
lodged by the appellant with the police before the preliminary order 
was passed, and therefore there was no longer any dispute on the day 
of the order Jikel y to lead to a breach of the peace. 
c 
D 
E 
F 
HELD : (i) The satisfaction under sub-s. (l) of s. 145 is .:hat of the 
"'.\fagistratc. 
The question whether on the materials before him he should 
initiate proceedings or not is. therefore. in his discretion which, no doubt. 
has to he e.xcrcised in accordance v.i4.h the well rccoR!liscrl n1les in that 
behalf. 
The High Court in the exercise of its revisional 
furi.cidiction 
\J.'ould not RO into the question of 
suffici~ncy of material 
which 
had 
G 
"tisfied the Magistrote. [86A-Bl 
Jn the present case- the Magistrate had expressed hi' satisfaction on 
the basis of the facts set out in the application before. him afrer he had 
examined the appellant on oath. That 
means that 
.~hose fact~ were 
prin1a farie ~ufficicnt and were the reasons leadinl:! to 
hi~ 
~atisfaction. 
[86C-Dl 
(ii) The jurisdiction under s. 145 hcing of an emr.rgcncy nature. the 
:\fagistrate mu"r ad ,,:ith caution hut that docs not mean th:tt where on 
an ;lpplication hy one ot .the parties. to the dispute he .h:. ~atisfied that. 1he 
requirement~ of rhe <:cct1on are ci:1stcnf. he cannot 1n111ate proceed1n.'tS 
• 
• 
II 
• 
A 
B 
c 
D 
E 
F 
G 
H 
R.H. BHUTAN! v. M. J. DESAI (Shelat, J.) 
81 
without a police report. The other vjew limits the discretion of the 
Magistrate and renders the words 'other information' in s. 145(1) either 
superfluous or qualifies them to mean other information 
verified by the 
police. [S7J>-E] 
Phutania v. Emperor, ( 1924) 25 Cr. L.J. 1109, Ganesh v. 
Venknta-
swara (1964) 2 Cr. L.J. 100 and Raja of Karventnagar v. Sawcar Lodd 
Govind Doss, (1906) I.LR. 29 Mad. 561, disapproved 
(iii) The High Court erred in holding that merely because disposses-
sion of the appellant was completed before June 20, 1966, there was no 
dispute existing on. that day which was likely· do lead to breach of peace 
or that the Magistrate was, therefore, prevented from passing the preli-
minary order and proceeding thence to continue the 
enquiry 
and 
pa~s 
his final order. This reasoning would mean that if a party takes the Jaw 
into his hands and deprives forcibly and wrongfully the other party of 
his possession and wrongfully completes his act of dispossess

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