ABDUL AZIZ Vs. STATE

JUDGEMENT

(1.) First Addl. Sessions Judge of Allahabad has made this reference recommending that an order dated 29 -8 -1970 passed by SDM Chail taking cognizance of proceedings u/S. 107 /117 of the CrPC be quashed. One Abdul Aziz claimed that land comprised in plots Nos. 528, 529, 558 and 293 in village Harwara was graveyard of the Muslims of that locality. One Chandan wanted to, take forcible possession of the land comprised in plot No. 528 and to bring it under his cultivation. Action of Chandan created tension in the locality and there was an apprehension of breach of peace. Accordingly, he moved an application dated 20 -7 -1970 before the SDM Chail praying that proceedings u/S. 145 CrPC be taken and Chandan be restrained from taking possession of that plot.

(2.) A report was called from PS Dhoomanganj, which on 27 -7 -1970 reported that plot No. 528 was a big plot and the grave -yard stood only on a portion of it. Entries made in the revenue papers supported Chandan's case who was trying to cultivate a portion of plot No. 528 which belonged to him after getting the land measured by Kanungo. Abdul Aziz and other Muslims were bent upon creating trouble. Tension between Hindus and Muslims was mounting and there was imminent danger of breach of peace. The Police therefore recommended attachment of the plot u/S. 145 CrPC. After perusing the report, learned SDM made an order dated 27 -7 -1970 holding that the land in dispute was owned by Chandan and that Abdul Aziz and others had no evidence whatsoever in support of their claim. In the circumstances, he did not consider it desirable to take any action u/S. 145 CrPC. He further observed that in case Abdul Aziz and others were bent upon creating trouble appropriate action u/S. 107 /117 CrPC will be taken against them. On 26 -8 -1970 another report was received from PS Dhoomanganj stating that Abdul Aziz and nine others were not permitting Chandan to take possession over the land in dispute. If at any time Chandan took steps for obtaining possession over the land there was a likelihood of Hindu -Muslim riot. In the circumstances, it was requested that proceedings u/S. 107 /117 CrPC be drawn up against Abdul Aziz and nine others. Accordingly, by an order dated 29 -8 -1970 the SDM directed that a case be registered and summons u/S. 112 CrPC be issued to Abdul Aziz and others.

(3.) Against the order dated 29 -8 -1970, Abdul Aziz and others went up in revision before the Sessions Judge, Allahabad. The revision application was ultimately heard by the Addl. Sessions Judge, Allahabad. They questioned the validity of the order dated 29 -8 -1970 inter alia on the following grounds: - -