GUR PRASAD SRIVASTAVA Vs. STATE

JUDGEMENT

(1.) I heard Sri H. D. Srivastava in support of this reference and Sri D. N. Jha who opposed the reference. It appears that on a police report that there was a dispute between the parties regarding possession over a house and there was an apprehension of breach of peace the Sub-Divisional Magistrate Gonda passed a preliminary order under Sub-section (1) of Section 145 of the Code of Criminal Procedure directing the disputed property to be attached and requiring the contesting parties to file written statements of their claims. The parties filed their written statements and: adduced evidence in support of their respective claims. The learned Magistrate did not drop the proceedings under Sub-section (5) of. Section 145 on a finding that there no longer existed any apprehension of breach of peace nor did he-pass any final order as required by Sub-section (6) of the said section. On the other hand he dropped the proceedings by his order dated 4-3-1970 on the ground that the disputed property was joint ancestral property of the parties and that a civil suit in respect of that property was already pending between the parties.

(2.) ON a revision filed by one of these contesting parties Gur Prasad Srivastava, the learned Additional Sessions Judge was of the opinion that the order passed by the magistrate was illegal and unwarranted. He has, therefore, made this reference with the recommendation that this order may be quashed and the learned magistrate may be directed to conclude the enquiry and pass a final order according to law as contemplated by Sub-section (6) of Section 145.

(3.) IN my opinion this reference is justified. The magistrate has no where stated in his order that no such dispute, as contemplated by Sub-section (1) of Section 145, existed, nor did he purport to cancel the preliminary order on that ground. In fact both the parties had admitted that there was a dispute between them regarding possession. Each Party was claiming that the disputed property was in his exclusive possession and as such it should be released in his favour after lifting the attachment. The magistrate has also not recorded a finding to the effect that on a material produced before him it was proved that the property was in joint possession of the parties and for that reason the proceedings Under Section 145 Criminal P. C. were not maintainable: What he has stated in his order is that the property is joint ancestral property and a civil suit in respect of that property is already pending between the parties. None of these two grounds is sufficient to absolve the magistrate from the duty enjoined on him by Sub-section (6) of Section 145. It may be pointed out that this property was the subject matter of similar proceedings Under Section 145 on a previous occasion during" the pendency of that civil suit. At that time those proceedings were dropped on similar grounds. But in spite of that the police felt the necessity to 'report for proceedings Under Section 145 again on the ground that there was a dismte regarding possession between the parties which was likely to cause an apprehension of breach of peace. Once the learned magistrate had accepted this report of the police and passed a preliminary order he could not wash off his hands from these proceedings by repeating the same ground again on whioh another magistrate had dropped these proceedings on -a previous occasion. After all the pur-T5ose of the proceedings was to prevent an apprehension of breach of peace. 'once the proceedings had been started fcy passing a preliminary order they had to be concluded only by passing a final order Under Section 145 (6) which has not been done in this case. The pendency of a civil suit between the parties in respect of the same property was no bar to the passing of a'final order Under Section 145 (6) as had been held by this Court.