SUKHDEO YADAV Vs. HARI SHANKARLAL

JUDGEMENT

(1.) THIS is a revision application under Section 397 of the Criminal Procedure Code, 1973, against the order dated 4-10-1974 passed by the learned Second Additional Sessions Judge. Azamgarh.

(2.) BRIEFLY stated the facts giving rise to this revision application are that plots Nos. 284/1 (1 acre 427 Karis) and 284/2 (560 Karis) are situate in village Sekhwalia P. S. Ahraula, District Azamgarh. On account of dispute over these plots between Haribanshlal and Udai Bhan, first party, and Sukhdeo Yadav, second party, reasonable apprehension of breach of peace existed. Therefore, on 2-9-1672 the Station Officer, Ahraula submitted a report that necessary action under Section 145, Criminal Procedure Code be taken. The property in dispute Hea within the jurisdiction of S. D. M. Sadar but the said report was somehow put up before. Sri Ram Saran Varshney, Sub-Divisional Magistrate, Phulpur, Magistrate First Class, Azamgarh, who passed the following preliminary order on the same day: Initiate proceedings under Section 145, Criminal Procedure Code. No order of interim attachment was made in the preliminary order which was sent to S. O. Ahraula for service on both the parties. The portion of the pro forma of the preliminary order which contained directions for affixation of the copy to some conspicuous place at or near the place of dispute was deleted although Srinath and Gorakhnath, interested in the subject of dispute, joined the proceedings at a later stage by filing their written statements as third party but it is evident from the record that service of the preliminary order was not effected in the manner prescribed by the provisions of Section 145 (3) of the Criminal Procedure Code, 1898. The record further shows that the S. D. M. Phulpur, having passed the preliminary order, directed on 9-10-1972 that the proceeding be transferred to the court of the S. D. M. Sadar within whose jurisdiction the property in dispute is situate. Accordingly the proceedings were transferred to the court of the S. D. M. Sadar before whom the parties filed their written statements. On 10-5-1974 the learned S. D. M. Sadar held that from the material on record Sukhdeo Yadav, the second party, appeared to be in possession of the disputed plots on the date of the preliminary order and within two months before it. He, therefore, issued an order declaring Sri Sukhdeo Yadav to remain in possession of the property until evicted therefrom in due course of law and forbidding all disturbances of his possession until such eviction.

(3.) THE first party preferred a revision before the learned Sessions Judge, Azamgarh, challenging the order of the S. D. M. Sadar, inter alia, on the grounds that the preliminary order which was the basis of the proceedings was passed by the S. D. M. Phulpur who had no jurisdiction and, as such, the entire proceedings were vitiated for want of jurisdiction and, secondly, that the mandatory provision of Section 145 (3) of the Criminal Procedure Code, 1898, was not complied with and on this score also the order of the S. D. M. was bad in law. II was further alleged that there was no material on the record on the basis of which the S. D. M. Sadar could have based his satisfaction that there existed or continued to exist apprehension of breach of the peace. Therefore, he should have dropped the proceedings and, in any case, his findings about possession were based on wrong appraisal of evidence.