JAI PRAKASH Vs. RADHEY SHYAM

JUDGEMENT

(1.) This is a criminal revision under Section 397/401 of the Code of Criminal Procedure, (for short the Code), filed by the applicants, who were second party Nos. 5 and 3 against the opposite parties, Nos. 1 to 34 in a case under Section 145 of the Code. The opposite parties have filed an application before the Sub-Divisional Magistrate, Ballia for initiating proceedings under Section 145 of the Code in respect of some plots situate in village Pokhara, with the allegations that they were cultivating the plot and the crops were sown and harvested by them. The plots were situated on the border of Bihar State. The boundary between the State of Bihar and Uttar Pradesh was demarcated by the Trivedi Commission. Initially the plots in dispute were the part of village Nainijor of the Bihar State and since that time the applicants have been cultivating the plots in dispute. But after the demarcation by the Trivedi Commission these plots have come in village Pokhara and now the opposite parties are cultivating the same. But there is dispute about the cultivation, sowing and harvesting of the crops between the opposite parties and the present applicants and some other person and there is likelihood that the breach of peace may take place at any time which may lead to untoward happenings. Hence the proceedings under Section 145 of the Code be started and necessary orders may be passed so that the peace may be maintained.

(2.) The Station Officer, Haldi submitted - his report on 24-1-86. The boundaries of the plots were also given. The learned Magistrate being satisfied with the report of the Station Officer, Baldi, dated 8-12-85 and 24-1-86, passed the preliminary order on 20-3-86 and also passed an order under Section 146(1) of the Code attaching the plot in dispute and the Station Officer, Haldi was directed to keep it under his own supervision unless some other receiver was appointed. The present revision challenges these orders under Sections 145(1) and 146(1) of the Code.

(3.) Shri V.K.S. Chowdhry, the learned counsel appearing for the applicants urged that for initiating proceedings under Section 145 of the Code there must be some evidence or material to prove that a dispute likely to cause breach of peace exists. In the instant case there was no such evidence and the preliminary order passed under Section 145(1) of the Code was without jurisdiction. He next urged that the boundaries of the land were not indicated and that in case there was the apprehension of the breach of peace from the side of the applicant, the proceedings under Section 107/117 of the Code must have been initiated, rather than the proceedings under Section 145. It was further urged that as the proceedings for record operation were in progress in tae village, the rights, title and possession of the parties could have been decided in those proceedings, hence there was no justification for initiating proceedings under Section 145 of the Code and the same must have been dropped. Reliance was placed on Sohan Lal and another v. State of U.P. and others,1 Vinai Kumar and others v. Om Prakash and others,2 Maqsood Ahmad Khan v. Ahmad Sayeed Khan3 and Ram Sumer Pun Mahant v. State of U.P.4