Mohd. Soofi and Others vs Maqbool Ahmad and Others

M. Wahajuddin, J.—By this application u/s 482 Code of Criminal Procedure a prayer has been made that the judgment and order passed by Additional Magistrate, Allahabad and by 4th Additional Sessions Judge, Allahabad (Annexure 6 and 7) be quashed.

It would appear that a preliminary order was passed in this case by Sri R.C. Saxena, Additional District Magistrate, Allahabad, recording his satisfaction about the apprehension of breach of peace centering round possession over grove and property involved in that proceeding, written statements from both sides were invited. Opportunity was afforded to file affidavits and other materials. The Magistrate vide its order dated 18-9-1980 declared the present opposite parties Maqbool Ahmad and others to be in possession and forbade the present applicant not to interfere with their possession unless they are evicted in due course of law.

It is argued that the application that was preferred before the Magistrate did not allege any apprehension of breach of peace and simply revealed a dispute over property and its possession. That, however, does not appear to be the case. Paragraph 7 of the application expressly recites that the applicant proceeded to pluck guavas from his grove and opposite parties i.e. present applicants resisted and objected to it, hurled abuses and got ready to indulge into criminal act (Amada Fauzdari hui). Such an averment would in itself discloses an apprehension of breach of peace.

It was next urged that in his statement, Maqbool Ahmad, one of the opposite parties, stated that he lodged report only against one Furans and not against the applicants as there was no quarrel with them. It would, however, be found that Annexure 3 is not a complete copy of the statement of Maqbool Ahmad. A complete copy of his statement has been annexed as Annexure 1 to the counter-affidavit and in the end of the statement it has been expressly stated that at the spot there is apprehension of breach of peace, centering round the dispute over possession of the land involved. Statement of any witness has to be read as a whole and not piecemeal. It would have been fair on the part of the applicants to annexed the whole statement rather only to annex such part statement.

It was next argued that the plots in question are entered in the papers in joint names of the parties so they are admittedly joint property. This, however, is not the position. The stand of the present opposite parties in the proceedings was that actually a Barware had taken place in between the parties and so far as the plots and grove involved are concerned, they had fallen to the share of the opposite parties and became their exclusive holdings and trees were planted in those numbers. In the circumstances it cannot be urged that there is an admitted case of the parties that plots and grove are joint property.

It was next argued that in any case such Barware had not been proved. In a proceeding u/s 482 Code of Criminal Procedure this Court will not enter into any findings of fact. I may, however, observe that the case of the parties was examined by the Magistrate threadbare holding that the present opposite parties are in exclusive possession over the property involved. This finding of fact was upheld by the Sessions Judge also in his fully discussed judgment. When that is the position any inherent powers would not be exercised to interfere with such findings of fact based on appreciation of materials on record, and their consideration by the lower courts.

It was next argued that the Magistrate has committed an illegality in not considering the matter of apprehension of breach of peace at subsequent stage when an application was preferred by the present applicants that no such apprehension of breach of peace exists. In that connection reliance is placed upon the order dated 2-4-1979 of the Magistrate. From that order it would appear that the Magistrate observed that at the stage of the Preliminary order he was satisfied about the apprehension of breach of peace and there are no such subsequent developments which may indicate that the position has changed so proceedings cannot be dropped and matter will be considered at the stage of judgment.

It was argued that this was not a proper approach. Reliance was placed upon Gajpat Rao and Another Vs. Smt. Ladli Kunwar and Others, in which it was held that even if after the preliminary order any application is preferred that there is no apprehension of breach of peace it may be considered and the matter should not wait the stage of the filing of the written statement and further proceedings. This case deal with the situation arising before the stage of the written statement is reached. That is not the position in this case. Actually the application was preferred later. Apart from it the Magistrate has passed the order on that application, by implication holding that the position as it existed on the date of preliminary order continued and there is no change. It was argued that at the time of the final order the matter should have been adjudicated upon afresh. So far as that aspect is concerned, although any express finding in so many words has not been recorded on a perusal of the final order of the Magistrate, it would be found that it has referred the evidence on apprehension of breach of peace as well. I am bound to fallen Supreme Court''s view taking in the case of Rajpati v. Bachan 1980 AWC 642 holding that once there is a satisfaction of the Magistrate at the time of the preliminary order and he has recorded such satisfaction and passed the preliminary order based on such satisfaction, omission on his part to mention in final order that there was any breach of peace would not vitiate the matter. In fact, in that case on such consideration High Court had allowed the application u/s 482 Code of Criminal Procedure but that order was set aside as per aforesaid observation.

The result is that I do not find any force in this application u/s 482 Code of Criminal Procedure and it is hereby rejected.