MAHADEO SINGH Vs. SUKHDEO AND ORS

JUDGEMENT

(1.) This revision application arises out of a case Under Section 145 of the Code of Criminal Procedure.

(2.) It appears that one Mahadeo Singh hereinafter called the applicant made an application Under Section 145, Code of Criminal Procedure that he was in possession of the disputed plots and the opposite-parties Sukhdeo and others wanted to dispossess him and on account of it there was an apprehension of breach of peace. The application was made on the 11th July, 1953. The learned magistrate called for a police report which was submitted on the 19th July, 1953, to the effect that there was an apprehension of breach of peace. Thereafter the preliminary order was passed on the 28th July 1953 directing the attachment of the disputed property and ordering the parties to file their written statements. Both the parties filed their written statements. The opposite parties contended that there was no apprehension of breach of peace. Thereafter the learned magistrate called for a fresh report from the police on the 13th August, 1953. This second report was submitted on the 18th August, 1953, in which it was stated that there was an apprehension of breach of peace. Thereafter, 13th October, 1953 was fixed for the evidence of the parties. The case could not be taken up on the 13th October, 1953, and was adjourned to 13th November, 1953. During this period on the 19th October, 1953 the opposite-party made an application before the learned magistrate that there was no apprehension of breach of peace, and on this application the learned magistrate again called for a report from the police. On the 28th of October, 1953, the police submitted the report that, as the crop in the disputed plot had been cut, there was no immediate apprehension of breach of peace. A day before this report was submitted an application was made by the applicant that he might be informed of any order that might by passed in the case. On the 28th October, 1953, the learned magistrate acting on the report of the police dropped the proceedings as he was satisfied from that report that there was no apprehension of breach of peace. Against this order the applicant filed a revision before the learned Sessions Judge of Fatehpur. He dismissed it on the ground that the learned magistrate was quite competent to drop the proceedings if, at any stage, he was satisfied that there was no apprehension of breach of peace. The Applicant has now come up in revision to this Court.

(3.) It has been contended on behalf of the applicant that the procedure adopted by the learned magistrate was not warranted by the provisions of Section 145 Code of Criminal Procedure I do not think that the learned magistrate was right in calling for successive reports during the pendency of the case, from the police and deciding the case on the basis of such a report without giving any opportunity to the parties whether the report was correct or not. He was not justified in passing the order on the 28th October, 1953 behind the back of the applicant and without hearing him or his counsel. I have already mentioned above that the property in dispute was attached in this case on the report of the police which was submitted on the 19th July, 1953 and thereafter the parties were directed to file their written statements. They did file their written statements and it appears from a perusal of their written statements that there was a dispute between the parties on the question whether there was an apprehension of breach of peace or not. In the circumstances the learned magistrate should have called upon the parties to produce their evidence in support of their respective allegations and after hearing them if he was satisfied that there was no apprehension of breach of peace it was open to him to drop the proceedings at any stage. The learned magistrate had fixed the 13th October, 1953 and thereafter 13th November, 1953 for the evidence of the parties but he decided the case before that date without taking their evidence and without hearing them simply because a report was submitted to him by the police during the interval that there was no immediate apprehension of breach of peace.