BISHWANATH SINGH Vs. RAMDHWAJA SINGH

JUDGEMENT

(1.) THIS application for revision is directed against an order passed by the learned V Addl. Sessions Judge, Varanasi.

(2.) IT appears that an application was moved before the learned Sub- Divisional Magistrate alleging that there was an apprehension of a breach of the peace on account of a dispute relating to the crop which had been cut and stored in the khalihan. On the basis of that application the learned Magistrate initiated proceedings under Section 107/116 CrPC. While these proceedings were pending a Misc. application was moved before the learned Magistrate on behalf of the applicant alleging that the opposite parties were not allowing the applicant to thresh the crop which he had raised and which he had cut and stored in the khalihan. The learned Magistrate heard learned counsel for the parties and thereafter he came to the conclusion that no action could be taken on this application in those proceedings. He pointed out that there were only two procedures open tot him for preventing breach of the peace. One was by way of proceedings under Section 107/116 CrPC and the other by way of proceedings under Section 14fi CrPC. Proceedings under Section 107/ 116 CrPC were already pending. As for Section 145 CrPC, the learned Magistrate did not say anything clearly as to whether it was a fit case for proceeding under that section or not. He, however, went on to discuss the material on record and then held that the applicant was in possession of the land and he had raised and cut the crop. In this view of the matter he passed an order directing the Station Officer of the Police Station to see that the applicant was not obstructed in threshing and taking away the crop stored in the khalihan. He also directed the Station Officer to ensure that there was no breach of the peace in this connection.

(3.) LEARNED counsel for the applicant contended in the first place that the order passed by the learned Magistrate was not a Judicial order but an executive order and so the learned Sessions Judge had no jurisdiction to entertain a revision against that order. With this contention, however, I am unable to agree. It appears to me to be clear from the observations made by the learned Magistrate in the order in question that he purported to act judicially and as a court. He observed that it was the duty of the "court" to see that there was no breach of peace and that there were only two courses open to him in the matter : One being to proceed under Sections 107/116 CrPC and the other to proceed under Section 145 CrPC