G D MUKERJI Vs. SHYAM LAL TEWARI

JUDGEMENT

(1.) THESE are four connected matters arising out of proceedings u/S. 145 CrPC.

(2.) THE relevant facts are that an application u/S. 145 CrPC was moved by Sri G.D. Mukerji on 2-8-1976. THEse proceedings were ultimately dropped by the order of the magistrate on 13-8- 1976. Another report was submitted by the police on 22-9-1976 for taking action u/S. 145 CrPC. THE Court, however, proceeded u/Ss. 107/117 CrPC on 28-4-1977. Sri G.D. Mukerji applied for the conversion of the proceedings u/S. 107/117 CrPC, to one under Section 145 CrPC On 7-5-1977 the Magistrate concerned converted the said proceedings into one u/S. 145 CrPC. He directed the parties concerned, namely G.D. Mukerji, the 1st party and Shyam Lal Tewari, Jwala Prasad and Amrit Lal, the second party to appear before the Court and to file their written statements. THE dispute centers round the premises no. 91, Sohbatia Bagh Road, Allahabad with its appurtenant land and out houses, numbered as 91-A Sohbatia Bagh Road, Allahabad. Aggrieved by the order of conversion dated 7-5-1977 Jwala Prasad filed Criminal Misc. Application no. 280 of 1977 before this Court which was eventually dismissed on 2-9-1977. Shyam Lal and Amrit Lal also filed a revision against the aforesaid order converting the proceedings to one u/S. 145 CrPC before the Sessions Judge, Allahabad vide Criminal Revision no. 4 of 1977 and Criminal Revision No. 170 of 1977. Both these revisions were dismissed by the Sessions Judge, Allahabed vide his orders dated 21-9-1977 and 29-10-1977.

(3.) AS regards the first question mentioned above, it may be observed that on 7-5-1977, the Magistrate converted the proceedings under Sections 107/117 CrPC to one under Section 145 CrPC and he passed the preliminary order. This order of the Magistrate has now become final between the parties inasmuch as it has been upheld by the Sessions Judge, Allahabad as well as by the High Court in their respective orders referred to above. Parties have been summoned by the City Magistrate, Allahabad and directed to file their written statements in support of their respective claims. During the course of these proceedings Sri G. D. Mukerji filed an application supported by an affidavit on 3-10-1977 praying for attachment of the property. The report of the Station Officer dated 7-10-77 also indicated that immediate attachment of the property was necessary as the case was one of emergency. On 1-11-77 Sri G. D. Mukerji filed another affidavit in which he complained of a criminal assault hawing been made upon him on 1-10-1977 by Shyam Lal Tewari and his associates. In this affidavit he states that a situation has arisen and there is imminent danger to his life and property. He has prayed for attachment under Section 145 CrPC. On 4-11-1977 Shym Lal filed his written statement, in para 13 of which he alleged that there was no apprehension of breach of peace, ft may be mentioned here that the preliminary order was passed as far back as on 7-5-1977. The applications, affidavits and written statements above mentioned have all been filed in Court thereafter. About six months have passed since the passing of the preliminary order. AS is obvious Sri G. D. Mukerji was alleging a case of apprehension and imminent danger of breach of peace which was supported by the report of the Station Officer. On the other hand, Shyam Lal asserted on 4-11-1977 that there was no apprehension of breach of peace. There can be no doubt that in the face of these allegations and counter allegations with regard to the existence or otherwise of apprehension of breach of peace, it was incumbent upon the Magistrate to have decided this question before proceeding further. The applicants' counsel has contended that this question has not been decided in the impugned order. The respondent's counsel has contended that the question has been decided in the impugned order. Thus the short point for consideration is whether this question has or has not been decided in the impugned order. On a fair reading of the entire order passed by the City Magistrate, Allahabad dt. 5-11-1977, it cannot be said that the question of the existence of apprehension of breach of peace has not been considered. The Magistrate has detailed all the facts in his impugned order. He has made reference to the affidavit tiled by G. D. Mukerji, the report of the police and the written statement filed by Shyam Lal. Having gone through the entire record, the Magistrate came to the conclusion that there was an imminent apprehension of breach of peace. AS such he has passed the order of attachment of the property in dispute. In my opinion, therefore, the order of the Magistrate cannot be assailed on the ground that he has failed to determine this question and hence committed a breach of procedure. Having come to the conclusion that there did exist an apprehension of breach of peace, it was well within the competence of the Magistrate to pass an order attaching the property under Section 146 CrPC since he considered the case as one of emergency.