JAVITRI DEVI Vs. RAJ PAL SINGH

JUDGEMENT

(1.) This revision is a result of an order passed in the proceedings under Sec. 145, Cr. P.C. The proceedings were initiated by Smt. Javitri Devi by an application moved on 31.10.1981. A police report was called for and is dated 3.11.1981 to the effect that there was all apprehension of breach of peace. Upon this the learned Magistrate passed a preliminary order on 4.11.1981. Oil 21.11. 1981 Smt. Javitri Devi applied for attachment of the property but the learned. Magistrate directed the coatinualice of the status quo. Then Oil 6.1.1982 the preselit opposite party no.1 Rajpal Singh, filed his written statement by way of obligation against the proceedings and on 27.1.1982 Smt. Javitri Devi felid an additional written statement claiming herself to be in possession. on 31.8.82 the learned Magistrate, passed an order that he was not satisfied as to who was in possession on the spot and hence he directed that the property be attached and kept under attachment till such time as the decision is obtained from a competent civil court.

(2.) Against this order, criminal revision no.104 of 1982 was filed by Rajpal Singh and Prem Singh and the learned IVth Additional Sessions Judge, Bijnor, by his impugned order dated 1.3.1983 allowed the revision and declared the revisionists to be entitled to possession of the plots in question. He also forbade all disturbance in their possession until they are evicted in due course of law. Against this order, the present revision has been filed.

(3.) The learned counsel for the revisionist argues that in view of the scheme of Sections 145 and 146 of the Criminal Procedure Code, the matter is of the satisfaction of the learned Magistrate and he has no decide it. The Sessions Judge has no jurisdiction to decide the question of possession. - In support, the case of Mahavir and others v. State of Y. P. and others was cited. That ease was similar to the present one. In that case brother S.J. Hyder, J considered the provisions of Sections 397, 389, 390, 391 and 401 of the Criminal Procedure Code and also Sec. 386 and especially sub-sectioned) thereof and came to the conclusion that the satisfaction of the Magistrate is an essential ingredient of Sections 145 and 146 of the Criminal Procedure Code and the revisional court is not entitled to make its own assessment of the evidence on record and come to a conclusion as to who was actually in possession on the date of the preliminary order and two months prior to it,