RAMJI SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision arises out of the order dated 16th May. 1969, passed in Criminal Case No. 30 of 1969 under Sub-section (1-B) of Section 146. Criminal Procedure Code. The applicants preferred revision against the order aforesaid before the Sessions Judge and the II Additional Sessions Judge. Ballia, by his order dated 10-10-1969 dismissed the revision application and did not refer the matter to this Court. Aggrieved by the orders aforesaid the applicants have preferred this revision.

(2.) THE facts of the case may briefly be stated thus: Proceedings under Section 141. Criminal Procedure Code were initiated by the Sub-Divisional Magistrate. Ballia. on the basis of a report, made by the Station Officer, P. S. Kotwali. Ballia; to the effect that a dispute likely to create breach of peace existed concerning three pieces of land described in detail in the report between the parties, The S. D. M. being satisfied about the existence of breach of peace in respect of the immovable property issued an order under Sub-clause (1) of Section 145. Criminal Procedure Code on 1,3th of December. 1966 and also attached the disputed plots. The S. D. M. called upon the parties to file their respective written statements putting forth their claim and to adduce evidence in support thereof. The parties filed their respective written statements and Ramji Singh filed written statement on his behalf as well as on behalf of other applicants on 17th of March, 1967. In paragraph 2 of the written statements he has stated that there was no apprehension of breach of peace between the parties. The S. D. M. as it appears did not advert to the plea taken in the written statement. He. however, after looking to the evidence adduced by the parties was unable to make up his mind as to which of the parties was in possession on the date of the preliminary order and within two months prior to it. He, therefore, referred the matter under Sub-clause (1) of Section 146, Criminal Procedure Code to civil Court to decide as to which of the parties was in possession of the subject-matter of dispute and continued the attachment of the property. The case was referred to the civil Court by order dated 29-1-1968. The Munsif returned the finding to the Magistrate on 7-5-1969 and find order in the case, on the basis of the finding recorded by the civil Court was passed on 165-1969 and this order of the magistrate has been challenged in this revision,

(3.) LEARNED counsel for the applicants submitted that the magistrate was bound to decide the question as to whether there was or was not any apprehension of breach of peace existing between the parties and when a plea was taken in the written statement by the applicant the Magistrate was required first to decide the question and thereafter if he was satisfied that there was still apprehension of breach of peace he could refer the matter to the Civil Court. Learned counsel contended that the order referring the matter to the civil Court and the subsequent proceedings are illegal as according to the learned Counsel the magistrate had no jurisdiction to decide the matter any further. Learned counsel referred to a case reported in 1969 All WR (HC) 817 (DB) (Sheo Nath Singh v. Munno Singh Yadav ). He has also placed reliance on an unreported case Criminal Misc. Case No. 552 of 1970 (All) decided by a single Judge of this Court wherein the Division Bench case of Sheo Nath Singh has been relied upon. The argument advanced, therefore, by the learned Counsel is that neither the Magistrate had any jurisdiction to pass any order under Sub-section (1) of Section 146. Criminal Procedure Code nor the Munsif could decide the matter referred to him on the basis of the order passed by the Magistrate without jurisdiction. 1 have given my thoughtful consideration to the law laid down in the Division Bench case and also decided by the learned Single Judge and to the submissions made by the learned counsel. In my opinion the ruling referred to and decided by the Division Bench and the case decided by the Learned Single Judge do not help the applicant nor the contentions raised have any force.