Report No. 37
364. Section 145(1)-Suggestion of a High Court Judge.-
With reference to section 145(1), the suggestion1 of High Court Judge raises three points, namely:-
(i) The section should be restricted to District Magistrates and Sub-divisional Magistrates specially selected.
(ii) the affidavit procedure (inserted in 1955) should be removed;
(iii) the mode of calculating the time limit under section 145(4), second proviso, should be altered.
The third point is separately dealt with.2
As regards the first point, our view is, that it is not desirable to restrict section 145 to the specified Magistrates as proposed. It may be, that the object of section 145 is sometimes defeated by a resort thereto in cases not within its intendment. From this point of view, the power should be confined to the higher Magistracy. Nevertheless, having regard to the need to preserve the public peace-which is the main justification for section 145-we would not recommend any change that would render its use in emergency more difficult than at present.
As regards the second point, without further experience of the provision regarding affidavits (introduced in 1955), we would not recommend a change.
1. F. 3(2)/55-L.C., Pt. II, S. No. 33(a).
2. See paras. 358 to 362, supra.
365. Section 145(1) and date.-
Date and time of attendance should also be mentioned in the order under section 145(1).
366. Section 145(1) and omission to record grounds.-
There appears to be a controversy1-2 on the question whether the omission to record grounds under section 145(1) vitiates the order. The matter, however, really pertains to section 537, and no provision on the question can be conveniently made in section 145.
1. See case-law discussion in
(i) Khudi Ram v. Jitendra Nath, AIR 1952 Cal 713 (715-717).
(ii) Sri Ram v. State, AIR 1958 Punj 47.
(iii) Kapoor Chand, ILR 55 All 301: AIR 1933 All 264 (FB).
2. Some of the earlier cases are reviewed in Note "Criminal cases of 1903", 8 CWN (Journal) 139, 154.
367. Section 145(2).- No change is needed in section 145(2).
368. Section 145 and suggestion of U.P. Committee.-
The U.P. Committee1 has made several suggestions with reference to section 145:-
(1) Evidence by putting in affidavits in proceedings under section 145 of the Code should be replaced by the oral examination of witnesses and their being cross-examined by the other.
(2) If, after an attachment has been made, the proceedings under section 145 are dropped, then, the court should be empowered to restore the attached property to the person from whose possession it was taken at the time of attachment.
(3) The period of two months contemplated by the second proviso to sub-section (4) of section 145 of the Code should be reckoned back from the date on which Magistrate got the information about wrongful dispossession and apprehension of breach of peace, (and not from the date on which the Magistrate passed the preliminary order).
(4) A Magistrate exercising jurisdiction under section 145 of the Code should have a discretion to take the disputed property under his management, by appointing a Receiver.
Our views as to these suggestions are as follows:-
Point (1)-No change is necessary, for the present, as it is rather early to restore the pre-1955 position.
Points (2), (3), (4)-These points are covered by the discussion at other places in this Report,2 relating to section 145.
1. F. 3(2)/55-L.C., Pt. VII, S. No. 449, Suggestion of the U.P. Committee for Investigation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report, pp. 45 to 47, (Draft at pp. 230-232).
2. See various points discussed under section 145.
369. Section 145(6) and punishment by Magistrate.-
It has been suggested1 that sub-section (6) of section 145 of the Code should be amended so as to confer a power on the Magistrate to punish a party who disobeys an order made thereunder.
We regret that we do not find this to be acceptable. The very Magistrate who issued the order should not punish the person violating it.
1. F. 3(2)/55-L.C., Pt. VII, S. No. 449, Suggestion of the U.P. Committee for Investigation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report, p. 48, top, and draft at p. 233.
370. Section 145(1) and suggestion to exclude private complaints.-
The following suggestion1 has been made by a High Court Judge:-
"It should be specified in sections 145-147 that cases should be started only on the report by the police regarding breach of peace. Private complaints should be excluded completely".
We have considered this suggestion in detail. Its acceptance would mean omission of the words "other information" in section 145(1). At present, there is no limitation as to the source of information, on which the Magistrate can act under section 145. The Magistrate may even act on information gathered at a local inspection, if he records his grounds2-3 for acting.
We are not inclined to limit the section in the manner suggested.4
Of course, prudence may require care before acting on a private report.5 But there should be no restriction so far as law is concerned.
1. F. No. F. 3(2)/55-L.C., Pt. III, S. No. 49(a).
2. Nityanand v. Paresh Nath, 1905 ILR 32 Cal 771.
3. Moher Kunbi v. Tilak Singh, AIR 1934 Nag 194 (195) (Vivian Bose J.)
4. See also discussion relating to section 107(1).
5. See Obhoy v. Mohammed, ILR 10 Cal 78 and 11 CWN (Journal) 223.