RAM DAYAL Vs. BAHADUR AND OTHERS

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Farrukhabad in a case Under Sec. 145 CrPC.

(2.) It appears that as application Under Sec. 145 Code of Criminal Procedure was made by Ram Dayal on behalf of his master Prabho Dayal that the latter was in possession of the disputed plots and had sown crops in them and that the opposite parties, wanted to dispossess him from these plots forcibly and on account of it there was an apprehension of breach of peace. The learned Magistrate before whom the application was made called for a report from the police. It appeared from the police report that there was a dispute between the parties in respect of the disputed plots and on account of it there was an apprehension of breach of peace. On this report the learned Magistrate passed a preliminary order directing the attachment of the disputed plots together with the crops standing in them and ordering the parties concerned to file their written statements. In pursuance of the above order the disputed plots were attached. Both the parties filed their written statements alleging their respective possession over the disputed plots. It seems that some time before the proceedings were started a suit had already been filed in the revenue court by the opposite parties in respect of the disputed plots. They had claimed that they were in possession of these plots as tenants. During the pendeney of the proceedings Under Sec. 145 Code of Criminal Procedure that suit was decided in favour of the opposite parties. In view of this decision the learned Magistrate did not proceed further to inquire into the question of possession as he was of the opinion that there was no longer any apprehension of breach of peace. He, therefore, dropped the proceedings and ordered that the attachment should be released in favour of the opposite parties. The learned Sessions Judge has made a reference on the ground that the learned Magistrate was not competent to order the release of attachment in favour of the opposite parties as in view of his finding that there was no apprehension of breach of peace he did not enter into the question of possession. He has recommended that the proper order which should have been passed by the learned Magistrate was to cancel the attachment and stay further proceedings in the case.

(3.) I have heard the Learned Counsel for the parties and in my opinion the learned Magistrate was not competent to order the release of the attachment in favour of any particular party unless from the material on the record it was clear that the attachment had been made from the possession of any particular party. If there was no such material on the record then the proper order which should have been passed by him after he came to the conclusion that there was no apprehension of breach of peace in view of the fact that the dispute between the parties with regard to the plot in dispute had already been decided by a competent court, was that he should have withdrawn the attachment and quashed further proceedings. He could not order the release of the attachment in favour of the opposite parties in view of the fact that there was a decree of the civil court in their favour that they were the tenants of the disputed plots. The attachment could be released in favour of a particular party only after the determination of the question as to which party was in actual possession of the disputed land on the date of the preliminary order, if the Magistrate was competent to enter into this question. In the present case he could not enter into that question as he had come to the conclusion that there was no apprehension of breach of peace.