RADHULI DEVI Vs. STATE OF U P

JUDGEMENT

(1.) This revision has been filed against the judgment dated 28th September, 1984 by Sri R. N. Sinha Sessions Judge, Pithoragarh by which he had set aside the order passed by the Sub Divisional. Magistrate, Pithoragarh under Section 145 of the Code of Criminal Procedure and had also quashed the proceedings. 2. The facts of the case were that the applicant Smt. Radhuli Devi, who is a resident of village Busel of district Pithdragarh, moved an application on 23. 5. 1981 before the Sub-Divisional Magistrate concerned alleging tha1; her husband Bhudev had pur chased 55 Nalis land and a house from opposite parties 1 and 2 for Rs. 23,000. 00. The amount was paid in cash and the opposite parties 1 and 2 promised to execute the sale deed subsequently. The possession over the land and house was handed to Bhudev. The appli cant further alleged that after some years, the opposite parties 1 and 2 served a notice for eviction of the house on Bhudev. Bhudev sent a reply to that notice after which no action was taken by opposite parties 1 and 2. The opposite parties 1 and 2 thereafter dispossessed Bhudev from a portion of land and in respect of that proceeding under Sec. 145, Cr. P. C. were taken in which Bhudev was again put into possession. Proceedings for partition were also taken by Opp. Party 1 and others. Bhudev filed an application in that matter on which Opp. Parties became angry with him and they had got the husband of the applicant abducted in Kartik in the x year 1981. The applicant asserted that since then, her husband was not traceable. The applicant also asserted that on 21. 5. 1981, all the opp. Parties dispossessed the applicant from the land and are threatening to kill her. She also prayed that the possession over the land be again given to her. 3. On the application moved by the applicant, the learned Sub-Divisional Magistrate called a report from Naib Tahsildar concerned. On the basis of the report dated 10. 6. 1981 by the Naib Tahsildar, proceedings under Sec. 145 Cr. P. C. were initiated. An order under Sec. 145 (1), Cr. P. C. was passed calling upon the parties to file their written state ments. Both the parties made their assertions claiming that they were in possession over the land in question. The statements of witne sses were recorded and certain documents have also been filed. The land was also attached during the proceedings. The learned Magi strate passed order on 19. 3. 1984 holding that first party Smt. Redhuli Devi was in possession over the land. in dispute but she was forcibly dispossessed by the second party. He accordingly directed the supurder to hand over possession of the land to the first party. 4. The second party Robert H'aso and others filed revision against the judgment by the learned Magistrate. The learned Sess ions ludge, Pithoragarh allowed the revision on 28. 9,1984 and set aside the order passed by the learned Magistrate. 5. In this revision filed by the first party applicant Smt. Radhuli Devi, it has been asserted that the learned Sessions Judge was wrong in allowing the revision. It was also asserted that there was a dispute as regards the possession over immovable property and the learned Magistrate had initiated proceedings under: sec. 145 Cr. P. C. in respect of the same. It has also been asserted that the learned Sessions Judge has to decide the question of possession only in this matter and was not required to consider the question of title in these proceedings. It has also Been asserted that the applicant Smt. Radhuli Devi was entitled to move application under Sec. 145 Cr. P. C. in absence of her husband who was not traceable for several months. 6. I have heard learned counsel for the parties and have also perused the record of the case. 7. Proceedings under Sec. 145 Cr. P. C. are initiated when the Magistrate concerned is satisfied that there is apprehension of breach of peace relating to the possession over the land or some other immovable pro perty. The present case, Smt. Radhuli DHVI moved an application disclosing as regards possession over immovable property. The learned Magistrate called the Naib Tahsildar, who, on 1. 6. 1981 that there was a dispute between the parties regarding the possession over the land in question, which is likely to cause breach of peace. The Naib Tahsildar mentioned the plot number as well as the area and also prepared map in respect of the land in dispute. In that map, the land in question was clearly and specifically demarcated. On the basis of this report, the learned Magi strate initiated proceedings under Sec. 143, Cr. P. C. subsequently, the land was attached under Sec. 146 U), Cr. P. C. Both the parties produced evidence in support of their alle gations. The first party also produced some documents in support of her case. The learned Magistrate considered the entire evidence produced before him and held that the evi dence was sufficient to prove that the appli cant Smt. Radhuli Devi was forcibly disposs essed from the land in question as alleged by her. It was contended on behalf of Smt. Radhuli Devi that she was forcibly evicted on 21. 5. 1981. The learned Magistrate initiated proceedings under Sec. 145 Cr. P. C. on the basis of the report of Naib Tehsildar dated 1. 6. 1981. It will thus be clear from the judgment by the learned Magistrate that the first party Smt. Radhuli Devi was forcibly evicted from the land in dispute within two months next before the report of the Naib Tehsildar concerned. In these circumstances, it was held that Smt. Radhuli Devi should be put back in possession over the land in dispute. 8. It appears that in the revision filed by second party Robert H'sso and others, it was asserted that the land in question could not have been identified and that the learned Magistrate was wrong in initiating proceedings on the basis of the application moved by Smt. Radhuli Devi. The learned Sessions Judge observed that there were certain very serious irregularities in this case which go to the root. According to "him, Smt. Radhuli Devi had no. r'9nt to move any application under Sec. 145, Cr. P. C. or for that matter under any provision of law. I am, however, unable to agree with this observation. It is in evidence that the husband of Smt. Rsdhuli Devi applicant was untraceable since Kartik of the year 1980. Smt. Radhuli Devi also led evidence to show that after the disappearance of her husband she had sown crops on the land which she claimed to have been purchased by her husband from Opp. Parties 1 and 2. She had also asserted thuf the Opp. Parties had forcibly evicted from this land on 21. 5. 1981. Obviously, in view of these facts, she moved application before the Magistrate concerned in order to bring those facts to his notice. Even a servant who is looking after the land of his master can move an application under Sec. 145, Cr. P. C.-in absence of his master Smt. Radhuli Devi is the, wife of Bhudev and in his absence she was allegedly looking after and cultivating the land and so she could have moved the application before the learned Magistrate. Apart from this, the learned Magistrate called a report from the Naib Tehsiidar who mentioned that there was apprehension of breach of peace relating tn the possession over the land in dispute between the first party Smt. Radhli Devi and the second party Robert Hisso and others, In view pf this report, the learned Magistrate coufd have initiated proceedings under Sec. 14% Cr. P. C. 9. the learned Sessions Judge has also observed HH| Bhudev, husband of applicant, should havu come to the Civil Court for specific performance of contract of sale, Ha also observed that the doors of criminal court are nqt open for matters which are exclusively within the jurisdiction of the. Civil Courl I atur on he observed that there was nothing on record to prove that in conne ction with the possession of the land there was,any apprehension of the breach of peace, possibly this could not be as there was no evidence of possession in favour of Smt, Radhuli Devi and har husband. It is obvious that the learned Sessions Judge has ignored the entire evidence which was produced in this case. As mentioned earlier, it was asserted by the applicant that there was apprehension of breach of peace due to the -dispute, relating to the possession over the land between the parties. The report of Naib Tehsudar was also to the same effect, The teamed Magistrate wag satisfied from this report and initiated proceeding under Sec. 146 (1 ). Cr. , P. C. During the hearing also it Was asserted by the, applicant that thete was apprehension of. breach of peace due to the dispute between the parties. This matter could obviqusly be within the jurisdiction of the Magistrate concerned and he could have initiated proceeding under Sec. 145 Cr. P. C. It. cannot belaid that the applicant or for husband were bound to movct. civil court for relief of specified performance of contract and could not move criminal courts in this matter. The applicant had led evidence to prove that she and her husbano were in possession over the land but she was forcibly dispossessed by the Opp. Parties. The learned Magistrate had considered this evidence and had given his finding in favour of the applicant, The learned Sessions Judge was entirely wrong in observing that there was no evidence of possession in favour of applicant Smt. Radhuli Devi and her husband. 10. The learned Sessions Judge has further observed that "plots Nos. 142, 143, 144 are Minjumla plots and only small area of these plots is involved in these proceedings. He also observed that it is not known as to what specific area of these plots was involved in these proceedings, and no map was prepared to show the land. Hence no proceeding under Sec. 145 Cr. P. C. could be taken without the land. being specified on the spot. " I am unable to agree with these observations also. The Naib Tehsildar has in this report given plot numbers as well as the area of the land in dispute. He has also prepared a map specifically showing the land in respect of which the dispute had arisen. That map was attached to his report. The learned Magistrate initiated proceeding in respect of that land. That land was also attached under Sec. 146 (1) Cr. P. C. and was given in the supardgi of Supurdat. In these circum stances It cannot be said that the land could not be specified at the spot or proceeding under Sec. 145 Cr. P. C. could not br taken, the learned Sessions Judge also, observed that it was not a case where proceedings under Sec. . 145 Cr, P. C. should have been started and'it was a elear case coming within the purview of-the civil court. This observation was also totally wrong as mentioned earlier. The dispute related to possession over the land giving rise to apprehension of breach of peace, proceedings under Sec. 145 Cr. P. C. were, in view of these facts, cleatly main tainable. The learned Magistrate wai not concerned with the question of title as to the property. That matter could obviously be considered by the Civil Court. The only thing which the learned Magistrate was required to see that as to which of the party,' if any, was in possession over the land in dispute. The learned Sessions Judge was totally wrong in holding that the matter-was of civil nature and the Magistrate had no lurisidiction to initiate proceeding under Sec. 145, Cr. P. C. 11- In view' of the above facts, it is obvious that the learned Sessions Judge has committed illegality while allowing the revision quashing the proceeding under Sec. 145 Cr. P. C. This revision should, therefore, be allowed. 12. The result, the revision is allowed. The order dated 28. 9. 19. 84 by the Sessions Judge, Pithoragarh is set aside. The order by the Sub-Divisional Magistrate, Pithoragarh is maintained. Petition Allowed. .