DHONDIBA Vs. SANDU

JUDGEMENT

(1.) This criminal application under Article 227 of the Constitution of India arises out of proceedings commenced under sections 145 and 146 of the Code of Criminal Procedure. There is a dispute between the petitioners, on the one hand, and the respondents 1 to 3 on the other, about possession of a piece of land admeasuring 2 acres and 23 gunthas out of Survey No. 239 of Kumbhari Village in Taluka Bhokardan, District Jalna. On August 22, 1975, the Sub-Inspector of Police, Bhokardan, submitted his report to the Sub-Divisional Magistrate, Jalna, for commencing proceedings under section 145 of the new Criminal Procedure Code of 1973, as there was a likelihood of breach of piece on account of the dispute between the parties relating to the said piece of land. He also submitted that the said land be attached and the parties be restraining from entering the said land. Acting on this report, on October 22, 1975, the Sub-Divisional Magistrate passed a preliminary order under section 145 Criminal Procedure Code directing the parties to appear before him to submit their say and evidence, if any. After the parties had filed their written statement, on June 12, 1976, the Sub-Inspector submitted another report that the dispute had taken a serious turn and that there was likelihood of commission of a serious offence and breach of the peace. On June 22, 1976, the Sub-Divisional Magistrate passed an order directing attachment of the land under section 146(1) of the Code and also appointed the Revenue Inspector as a receiver of the land. After considering the evidence led by the parties, on October 5, 1976, the Sub-Divisional Magistrate passed a final order holding that petitioner No. 2 was in actual possession of the land in dispute. In this view of the matter, he directed respondents 1 to 3 not to obstruct the possession of petitioner No. 2 over the land in dispute till he is evicted by a due course of law.

(2.) Aggrieved by the order of attachment passed on June 22, 1976, the petitioners had preferred Revision Application No. 56 of 1976, in the Sessions Court at Aurangabad. The respondents has also preferred Revision Application No. 113 of 1976 challenging the final order dated October 5, 1976, in favour of petitioner No. 2. Both the revision applications were heard together and disposed of by a common judgment by the learned Additional Sessions Judge, Aurangabad, by his judgment and order dated June 1, 1977. He dismissed the revision application preferred by the petitioners but allowed that filed by the respondents and set aside the order dated October 5, 1976, passed by the Sub-Divisional Magistrate and directed that the proceedings be sent back to him for decision according to law. Thereafter, on August 30, 1977, the Sub-Divisional Magistrate passed an order continuing the order of attachment till the parties got their claim decided in a Civil Court as regards the right of possession to the disputed land.

(3.) Mr. Agarwal, the learned Counsel appearing for the petitioners, informed us that having regard to the final order dated October 5, 1976, passed by the Sub-Divisional Magistrate in favour of the petitioners, the Revision Application No. 56 of 1976 was not pressed even before the Additional Sessions Judge. He however, contended that the view taken by the learned Judge, regarding the interpretation of the provisions of section 145 read with section 146(1) of the Code was erroneous in law, and in support of his contention he relied on a decision of the Division Bench of this Court in (Cajitan A. D'Souza v. The State)1, 79 Bom.L.R. 175. In our view, the contention of the Counsel is well founded.