NAWAB SINGH Vs. KANHAI

JUDGEMENT

(1.) AN application under Section 145 of the Code of Criminal Procedure was filed by Kanhai and Gulzari on 18th March, 1972. A report of the police was submitted on 26th March, 1972 in which ft was mentioned that there was apprehension of breach of peace over the land in dispute. It appears that a preliminary order was passed on 16th June, 1972, that is, more than two months after the submission of the police report. The parties were directed to file their written statement and documentary evidence in support of their respective case. The Magistrate on a consideration of the evidence on the record was unable to decide as to which party was in possession of the land in dispute, he. therefore, made a reference to the civil court under Section 146 (1) of the Code of Criminal Procedure. The Munsif recorded a finding that Kanhai first party was in possession prior to 19th March, 1972 and that Nawab Singh second party was constructing a house on the land in dispute which shows that he had forcibly dispossessed Kanhai on the 18th March, 1972. The Munsif was of the opinion that a fraud had been played upon the Court inasmuch as the report of the police was not placed before the Magistrate who passed the preliminary order, till after the expiry of two months from the date of the application. The first party would be deemed to be in possession within two months from the passing of the preliminary order on 26th March, 1972 : that is, to say, that though the first party was dispossessed on 18th March, 1972, yet they would be deemed to be in possession two months prior to the passing of the preliminary order. This finding of the Munsif has been returned to the S. D. M. concerned for disposal but so far he has not passed any order under Section 1 (b) in conformity with the decision of the Civil Court.

(2.) NAWAB Singh, second party, has filed en application invoking the jurisdiction of this Court under Section 561-A of the Code of Criminal Procedure and the prayer is that the proceedings under Section 145, Cr. P. C. pending in the court of S. D. M. Mainpuri in case No. 24/1972 Kanhai Singh v. Nawab Singh and others be quashed.

(3.) I have heard the learned Counsel for the parties at great length and also perused the affidavits and annexures filed by the parties. It is true that Kanhai and Gulzari had filed an application under Section 145, Cr. P. C. on 18th March, 1972. It is further correct that a report of the police was submitted on 26th March, 1972. From a perusal of the referring order, it appears that office staff had played a fraud upon the Court by not placing these papers before the Magistrate concerned for passing a preliminary order in time. Be that as it may, the factual position further is that on 6th June, 1972. another application was filed by Kanhai before the S. D. M. In this application even though there is mention of the earlier application having been filed toy him yet even on this date, he had made a grievance that the opposite parties were interfering with his possession which is likely to cause an apprehension of breach of peace. The Magistrate called a fresh police report on this application which was submitted on 8th June, 1972. Eight days thereafter the preliminary order was passed by the Magistrate that is, on 16th June, 1972. There was nothing in Law to prevent Kanhai from filing a second application under Section 145, Cr. P. C. when he found that no action was being taken on the first application or that the (papers were being deliberately withheld by the staff of the Court. On this subsequent application dated 6th June, 1972, the Magistrate had sent for a report of the police and it was on this application that the preliminary order has been passed.