BALDEO KRISHEN NAGAR Vs. STATE

JUDGEMENT

(1.) THIS is an application under Section 561a of the Criminal P. C. , for certain proceedings under 3. 147 of the Code pending in the Court of the City Magistrate, Varanasi, to be quashed.

(2.) THERE is a tank known as Krukraehetra tank which has land adjoining or appurtaining to it. The tank along with the adjoining land is claimed by the applicant to be his personal property and probably the contention of the Hindu public is that this is a public-trust in which the Hindu public at large hare some interest, their main interest being to take a dip in the tank on the occasions of solar eclipse. Bival claims for this property haven come up before the Courts on occasions more than once and reference is made to it in the? affidavit filed by the applicant and there has been no serious challenge to this allegation on behalf of the opposite parties. In 1962 proceedings were taken in respect of this property under Section 187 of the Code, but the applicant went up in revision to the Sessions Judge. Varanasi, who made a reference to the High. Court recommending the order of the City Magistrate being quashed. The referring order by the Additional Sessions Judge of Varanasi is annexure B to the affidavit and the order passed by the High Court in this reference is annexure 'c' to the affidavit. The order passed by the High Court is a short one and may be quoted in full: For the reasons contained in the referring, order the reference is hereby accepted and the order dated 18-2. 1962 of the Magistrate is set aside, The Magistrate is further directed to stay further proceedings till the question of the existence of the alleged public right has been, decided by a competent Civil Court. The sum and substance of this order was that further proceedings in the matter by the Magistrate were to be stayed till the question of the existence of the alleged public right was decided by the competent Civil Court. That alleged public right has not been adjudi. cated upon by the Civil Court so far, obviously because no member of the Hindu public has gone to the Civil Court to establish this right of the Hindu public. The order of the High Court is dated Both November, 1962. Although a suit by the members of the Hindu public to establish their right may not be barred by time even now (on which question I am not expressing any opinion) the fact remains that during these last five years or so this question has not been agitated in Civil Courts.

(3.) IN the meantime, however, the applicant secured the permission of the Municipal Board for constructing a wall and closing the entire disputed area and has now secured permission for constructing as many as 40 shops on a part of this land. It is this intention of constructing the shops that has awakened some of the otherwise sleeping members of the Hindu public to raise the question before the Magistrate again though they had not the courage to go to the Civil Courts for the purpose. The Magistrate, anxious perhaps to atop the constructions for reasons which strictly speaking, were not quite judicial, asked for a police report in the matter; but the police found that there was no apprehension of the breach of peace. The police also reported that the matter had been agitated earlier before the City Magistrate and that the High Court had Ordered that unless the question of the existence of the public right was decided by the competent Civil Court, the Magistrate should stay further proceedings. Inspite of this report by the Sub-Inspector, the City Magistrate felt inclined to pass some sort of an order or the other and he consequently asked for the Tahsildar's report. An enquiry was made by the Naib Tahsildar who submitted a report on 9th December, 1966 but even in this report there is no mention that there is any likelihood of the breach of peace. All the same the Magistrate passed the order on 2nd June, 1967 under Section 147 of the Code. Even this older is a very short one and may, therefore, be quoted in full: Register a case under Section 147, Criminal P. C. and issue notice to the parties to appear in the Court on the 19th June, 1937. Mean, while the construction shall be stopped. It is the validity of this order which is questioned in this petition. Having heard the parties including some members of the public who were at their own instance made parties to these proceedings, I find that this application must be allowed and the proceedings under Section 147 of the Criminal P. C. , quashed.