MAHANT VISHWANATH DASS Vs. PANCHAM AND ANR.

JUDGEMENT

(1.) This, is a reference by the 1st Additional Sessions Judge, Ghazipur, dated 3 -8 -1971 for quashing the order of the Sub -Divisional Magistrate Saidpur, in proceedings Under Sec. 145 of the Code of Criminal Procedure. Sheopujan Vaid filed an application in the court of the Magistrate on 22 -10 - 1969 for initiating proceedings against the opposite -parties Under Sec. 145 of the Code of Criminal Procedure. It was alleged by Sheopujan Vaid that the plot in dispute was in his possession and crops thereon had also been sown by him. The opposite -parties were trying to interfere with his possession. There was an apprehension of breach of peace. It was, therefore, prayed that action Under Sec. 145 of the Code of Criminal Procedure be taken. The Magistrate called for a report from the police which was submitted on 3 -11 -1969. Being satisfied therefrom as to the existence of breach of peace the Magistrate passed a preliminary order Under Sec. 145(1) of the Code of Criminal Procedure attaching the plot in dispute and calling upon the parties to file their written statements and affidavits in support of their respective claims. The opposite -parties Pancham Das and Mahant Vishwanath Das filed their written statements. Each of them claimed to be in possession of the disputed plot. The Magistrate was unable to decide the question of possession. He therefore, made a reference to the civil court Under Sec. 146 of the Code of Criminal Procedure. The Munsif by his order dated 24 -2 -1971 decided that Pancham Das was in actual possession of the disputed plot and the crops standing thereon on the relevant dates. On receipt of this finding by the civil court the Magistrate decided the case in conformity with the aforesaid finding by his order dated 20 -3 -1971. The Sub -Divisional Magistrate Saidpur directed the release of the attached plot in favour of Pancham Das and restrained Vishwanath Das and Sheopujan Vaid from interfering with the peaceful possession of Pancham Das over the plot in question till he was evicted therefrom by a court of competent jurisdiction.

(2.) Aggrieved by the aforesaid order Mahant Vishwanath Das filed a revision before the 1st Addl. Sessions Judge, Ghazipur, in which he impleaded Pancham Das and Sheopujan Vaid as the opposite -parties. The 1st Addl. Sessions Judge has made a reference to this Court for quashing the impugned order of the Sub -Divisional Magistrate. I am not inclined to accept this reference. The view expressed by the 1st Addl. Sessions Judge in the referring order is that in the circumstances of the present case it was obligatory upon the Magistrate to have followed the procedure prescribed Under Sec. 145(5) of the Code of Criminal Procedure. The court below stated that Sheopujan Vaid has sworn in paragraph 2 of his affidavit that there was no apprehension of breach of peace and as such "these averments go to show that the parties had challenged the existence of an apprehension of breach of peace regarding possession of the disputed plot." In his view, therefore, the Magistrate should have decided this question first and his failure to do so is a jurisdictional error which has vitiated the entire subsequent proceedings including the reference to the civil court and the decision arrived at by the Magistrate thereon.

(3.) At this stage it would be relevant to quote Sec. 145(5) of the Code of Criminal Procedure. It runs as follows: