POLA SHAMBHU Vs. VELJI NARSHI

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Junagadh, suggesting that this High Court should set aside the order of the Sub-Divisional Magistrate, passed on an application under Section 145 of the Cri. Pro. Code in favour of the opponent Velji Narsi of Mendarda against Pola Shambhu.

(2.) THE opponent had filed an application on 2-7-52 under the above Section complaining of interference with his possession of land by Pola Shambhu. which was likely to cause breach of peace before the First Class Magistrate (Judicial), Junagadh. The First Class Magistrate recorded the statement on oath of the original applicant Velji and passed a preliminary order, whereby he ordered Pola Shambhu to furnish security for maintaining peace in the sum of Rs. 500/- for a period of six months. He at the same time ordered the usual issue of notice to him for hearing of the main application. Both the parties appeared before the Magistrate on 14-7-52, but the case was adjourned to 16-7-52. On that date it seems the learned Magistrate discovered that by operation of the Saurashtra Separation of Judicial and Executive Functions Act he had no jurisdiction to entertain an application Under Section 145, Cri. Pro. Code.

(3.) NOW this Act came into force from 17-5-52. Accordingly the case papers were sent to the District Magistrate on 16-7-52 and he referred them to the Sub-Divisional Magistrate, who continued the proceedings and issued a notice to the parties of the hearing of the main application. Several adjournments seem to have been granted on one ground or the other and ultimately the Sub-Divisional Magistrate went into the evidence of both the parties and gave a finding in which he has given certain instances of interference with the possession of Velji Narshi by Pola Shambhu. Although the learned Sub-Divisional Magistrate has not given a definite finding that there was likelihood of breach of peace, the acts found by him do indicate clearly that there was a likelihood of breach of peace. He also gave a finding that the land in dispute was in possession of. Velji Narshi and consequently he passed the order Under Section 145, Cr. PC restraining Pola Shambhu from interfering with the possession of yelji Narshi. Against this order Pola moved the learned Additional, Sessions Judge for making a reference to the High Court for setting aside the order and the present reference has accordingly been made.