SAGAN Vs. STATE OF U P

JUDGEMENT

(1.) N. B. Asthana, J. This writ petition has been filed for quashing the order dated 9-9-1992 passed under Section 145 Cr. P. C. by S. D. M. Handia, Allahabad and also the order dated 9-9-1992 passed by him under Section 146 (1) of the Cr. P. C.

(2.) FROM the record it appears that in Criminal Case No. 77 of 92 Rom Lolarakh v. Sagan and others, a preliminary order under Section 145 (1), Cr. P. C. was passed by S. D. M. Handia on 9-9-1992 directing the parties to appear before him on 23-9-1992 and their written statements with respect to their respective claims regarding actual possession of the subject matter of dispute which was plot No. 171/0. 219 hectare in village Bhelai, Pargana Bhadohi, Tehsil Handia, Allahabad. On the same day he passed an order under Sec tion 146 (1) Cr. P. C. attaching the subject-matter of dispute as an emergency measure. On the same day he passed another order directing the Station Officer, P. S. Kotwali, Handia, Allahabad to keep the property in dispute under attachment until a competent court had determined the rights of the parties thereto with regard to the person entitled to the possession thereof stating that he was unable to come to the conclusion as to which of the parties was in possession on the relevant date of the subject-matter in dispute.

(3.) IT was also contended that the proceedings initiated by respondent No. 3, namely, Ram Lolarakh under Section 145 Cr. P. C. were dismissed on 31-12-1982 and then again such proceedings were rejected on 28-7-1992 and, therefore, the Magistrate had no jurisdiction to initiate fresh proceedings with respect to the same subject-matter of dispute on 9-9-1992. Annexure-8 to the writ petition would indicate that the Station Officer of P. S. Handia submitted a report to the S. D. M. Handia stating about the different orders passed by different courts regarding possession of the parties and requesting him to clarify as to which party should be delivered possession of the plot in question. The S. D, M. passed an order on 26-7-1992 upon this report seating that proceedings under Section 145 Cr. P. C. are said to have been decided between the parties probably this refers to the proceedings taken in the year 1982. The matter of ownership is under consideration in a competent court. The Station Officer has stated about the apprehension of breach of peace, He should, therefore, keep a strict watch so that there may not be any breach of peace, and may take preventive action. This over would not moan that proceedings under Section 145 Cr. P. C. ware dropped. No proceedings were initiated at that time under Section 145 Cr. P. C. nor any question of dropping them would arise. Amtexure-7 is the order dated 31-12-1982 passed by the then S. D. M, Handia, Allahabad. The order shows that the S, D. was of the opinion that the matter relates to the dispute bother the parties relat ing to the ownership of the laud and as such he is of the opinion that there is no immediate apprehension of breach of peace. He, therefore, filed the application moved under Section 145 Cr, P. C. This order would also not indicate that any proceedings were initiated or decided under Section. 145 Cr. P. C. The Magistrate did not rind arty apprehension of breach of peace at that time and, therefore, did not initiate such proceedings. This would not prevent the Magistrate from initialing proceedings under Section 145 Cr. P. C. after the lapse of 10 years on the ground that the apprehension of breach of peace existed. IT cannot, therefore, be said that the Magistrate was not justified in initiating proceedings under Section 145 Cr. P. C.