Chotta and Others vs Om Prakash

V.N. Varma, J.—This revision has arisen out of a case u/s 145 CrPC.

The subject matter of dispute in this case was plot No. 574 measuring 1 Bigha pucca. The opposite party claimed to be the sirdar of this plot. According to him, at the relevant time, he had raised sugar-cane crop on a part of it and Behan on the remaining part. Further, according to him, the applicants had no concern with this plot, but despite that they have started interfering with his possession over it. Their main aim is to take it''s possession forcibly. There was thus a dispute between them as a result of which there was an apprehension of breach of peace. Accordingly he moved the Court of S. D.M. Kairana, District Muzaffarnagar to initiate proceedings u/s 145 CrPC. The Magistrate called for a police report and on the basis of that report he felt satisfied that there was an apprehension of breach of peace qua the disputed land. He, therefore, drew a preliminary order on 3--11--1972 and attached the subject of dispute. He also called upon the parties to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and also to produce evidence in support of their respective cases. The parties filed their written statements and also led evidence as directed. The learned Magistrate after going through the entire material on record, came to the conclusion that the opposite party had been in possession of the disputed plot on the date the preliminary order was passed and within two months prior to that. Accordingly, he released the disputed plot in favour of the opposite party. Aggrieved, the applicants went up in revision to the Court of Session. The Sessions Judge found no substance in the revision and dismissed it accordingly Aggrieved, the applicants have now come up in revision to this Court.

In this case I did not have the advantage of hearing the learned Counsel for the parties as they did not turn up when the case was called out for hearing. I therefore, went through the record of the case myself helped by the learned Counsel for the State. This case, as stated above, had been started at the instance of the opposite-party in his petition he had alleged that there was a dispute between the parties in regard to possession of plot No. 574 and that dispute was such as was likely to cause a breach of the peace. The Magistrate proceeding ex prate felt satisfied that there was apprehension of breach of peace and he took action u/s 145 CrPC. In the written statement filed by the applicants they clearly stated that no apprehension of breach of peace existed and as such the proceedings u/s 145 CrPC stood vitiated. In some of the affidavits filed on their behalf, the same thing was reiterated. In view of the fact that the applicants had denied the existence of apprehension of breach of peace, it was incumbent on the part of the Magistrate to have considered the evidence and recorded a positive finding whether or not there was apprehension of breach of peace. No such finding was recorded by the Magistrate and as such the proceedings in the case stood vitiated by that illegality. The ex prate finding recorded by the Magistrate in the judgment was not enough to give him jurisdiction to proceed further in the matter after the applicants had made their appearance before him and had alleged as a fact that there was no apprehension of breach of peace. Inquiry about possession could have been under-taken only if the Magistrate had come to the conclusion that there was an apprehension of breach of peace. It is only the apprehension of breach of peace that gives j(SICK)redaction to the Magistrate to take action u/s 145 CrPC. The learned Sessions Judge also in his judgment did not say anything whether apprehension of breach of peace still existed or not. Therefore, as it is, there can be no doubt about the fact that the orders which the courts below had passed in this case were absolutely illegal orders and as such they cannot be allowed to stand. This revision must, therefore, succeed.

In the result, I allow the revision and set aside the orders passed by the Courts below. The case is remanded and the Magistrate is directed to first decide the question whether apprehension of breach of peace still existed or not. If he comes to the conclusion that apprehension of breach of peace still exists, he should proceed with the case in accordance with law, otherwise he should drop the proceedings.