HARI SHANKER Vs. SHRI BALI

JUDGEMENT

(1.) THIS is a reference made by the Ist Temporary Civil and Sessions Judge Jaunpur in proceedings under Section 145 Cr. P. C.

(2.) SRI Bali moved an application on 27th June 1970 alleging that he was in possession of plot No. 1610/1 situate in village Barain, Police Station Jalalpur, district Jaunpur and that the opposite party was interfering with his possession which was likely to lead to breach of peace. On these allegations he prayed that action be taken under Section 145 Cr. P. C. The Sub-Divisional Magistrate called for a report from the Station Officer Jalalpur. The Station Officer submitted his report on 2nd July 1970; after a perusal thereof the Magistrate was satisfied that there existed an apprehension of the breach of peace. As such he issued a preliminary order on 3rd July 1970 requiring the parties to put in written statement of their respective claims about possession and also to file affidavit in support of their claims. He further directed the property in question to be attached. The said property was attached on 27th July 1970. On 12th August 1970 Sri Bali made an application for time for filing written statement. Time was granted till 18th August 1970 but no written statement was filed. He again applied for time on 18th August 1970. This application was also granted yet no written statement Was filed. He made a third application for time. Even that was granted but yet no written statement was filed. Hari Shankar. however, filed his written statement on 7th September 1970. He also filed affidavits and documents in support of his claim. It was pleaded by Hari Shankar that he was in actual possession of the land in dispute and that there was no apprehension of the breach of peace. The case came up for hearing on 17th October 1970, on which date Sri Bali was absent. Payment of costs as ordered by the Magistrate while granting time to Sri Bali for filing written statement was also not made. No evidence was produced by him. After hearing the counsel for Hari Shanker and others the learned Magistrate arrived at a conclusion that there was no apprehension of breach of peace. He considered the evidence produced on behalf of Hari Shanker and also arrived at a finding that the land in dispute was in his possession. He, therefore, cancelled the preliminary order and dropped the proceedings. Thereafter on 17th October 1970 Sri Bali appeared in Court and filed an application for reconsideration of the aforesaid order. This application was dismissed in default on 27th September 1970. He then moved a second application on 30th November 1970 for reconsideration of the above-mentioned order. This application of Shri Bali was allowed by the Magistrate on 2. 1. 1971 and he directed a date to be fixed for evidence. The order of the Magistrate dated 2. 1. 1971 is quoted thus: The order dated 17. 10. 70 was passed by Sri R. A. Dubey the then S. D. M. in the absence of the first party 1970 All Cr. C 202 has reported a judgment of the Hon'ble High Court of Mysore. D/-16. 4. 1970 in which Justice Honniah has held that a complaint (under Section 145) is not liable for dismissal due to the absence of complainant. The above order is, therefore, against law and not sustainable. Fix 12. 1. 1971 for evidence.

(3.) THEREAFTER on 6th February 1971 a written statement was filed by Sri Bali. He also filed an affidavit of Ambika Prasad and others in support of his claim about the possession of the disputed land. On 6. 2. 1971 the Sub-Divisional Magistrate directed the Tahsildar to make a local inspection and to report by 25. 2. 1971. On 22nd April 1971 the Tahsildar-Magistrate submitted his report in which was mentioned that "the breach of peace is always hanging. The Tahsildar-Magistrate therefore, recommended that the opposite party be punished according to law. " Thereafter the Magistrate (heard the parties and came to the conclusion that there existed an apprehension of breach of peace in respect of the attached land and that Sri Bali the first party was in possession of the land in dispute two months prior to the passing of the preliminary order. This order was passed by the Sub-Divisional Magistrate on 5th July 1971.