SMT. RAM PIYARI Vs. RAJ KUMAR

JUDGEMENT

(1.) THIS revision by Smt. Ram Piari arises out of proceedings Under Section 145 Code of Criminal Procedure.

(2.) IT appears that Baldeo Prasad, the Mukhtaream of the Applicant, moved an application before the District Magistrate, Banda, stating that there was an apprehension of breach of peace between the Applicant and the opposite party in respect of nine cultivatory plots situate in village Bhawai and praying that proceedings Under Section 145 Code of Criminal Procedure may be taken in respect of then. The District Magistrate forwarded the application to the Station Officer 'concerned for necessary action. The Station Officer, conducted the necessary enquiry, and on its completion reported to the SDM Naraini that the allegations contained in the said application were correct. On receipt of the report and otherwise satisfying himself that an apprehension of breach of peace in respect of the said plots existed, the SDM Naraini on 28 -10 -1966 passed a preliminary order Under Section 145 Code of Criminal Procedure and pending decision, ordered the plots as also the crops standing thereon to be attached. By the same order he called upon the parties to file written -statements of their respective claims as respect the fact of actual possession of the subject of dispute and to file affidavits and documents in support thereof. Both the parties filed their written -statements, affidavits and documents and the learned SDM Naraini after considering them held that Raj Kumar, the opposite party, was in possession of the disputed plots on the date of the preliminary order and within two months next prior thereto. On these findings he passed an order Under Section 145(6) Code of Criminal Procedure in favour of the said opposite party. Srimati Ram Piyari Reeling aggrieved filed a revision in the Sessions Court, Banda but with no better luck. Hence this revision.

(3.) NOW so far as the second contention is concerned it is to be noted that in his written statement, dated 27 -10 - 1966, the opposite party himself urged, an a ground for the rejection of the Applicant's application Under Section 145 Code of Criminal Procedure that a suit filed by her in respect of the same plots Under Sections 229B/209 of the UPZA and LR Act was pending in the court of Sri V.D. Gupta, Assistant Collector, 1st Class, Banda. Hence as soon as the pendency of the said suit was brought to the notice of the learned SDM, he should have, on the language of Section 145 Code of Criminal Procedure and the authorities of this Court, either stayed the proceedings till that fact was proved to his satisfaction, or he should have forthwith dropped the proceedings Under Section 145 Code of Criminal Procedure and resorted to the provisions of Section 107/117 Code of Criminal Procedure, instead, if he found, that there was apprehension of breach of peace at the hands of the parties concerned. It is unnecessary to dilate upon this aspect of the case, as the law on it is concluded by the decisions of this Court in Bipta v. Dwarka and Ors., 1961 AWR 658 and Sohan Lal and Anr. v. State and others, 1967 AWR 550. In both these cases it has been uniformly held that the provisions of Section 145 Code of Criminal Procedure should not be invoked when civil litigation in respect of the identical immovable property is pending. It is, therefore, clear that the action of the learned SDM, in nevertheless, proceeding with the case Under Section 145 Code of Criminal Procedure was clearly illegal.