HANMANTHA Vs. HANIFABI

JUDGEMENT

(1.) THIS is a revision application in proceedings under Section 148 of the Hyderabad Criminal P. C. corresponding to Section 145 of the Indian Code. The first party who had complained in the lower Court that there was apprehension of breach of peace is the revision-petitioner. His main contention before me is that the Magistrate having found that there was no likelihood of breach of peace should have forthwith dropped further proceedings and should not have gone further and given a finding that the respondent was in possession of tm property at the crucial time and that she could not be dispossessed by the revision-petitioner, taking the Jaw into his own hands. Mr. Apparao appearing for the revision-petitioner has cited the following authorities of this High Court in support of the proposition that where the Magistrate comes to a conclusion that there was no likelihood of breach of peace, any further order passed by him in connection with the question of possession is beyond his jurisdiction: - 1 Deccan LR 158 (A); - 3 Deccan LR 131 (B); - 4 Deccan LR 278 (C); - 17 Deccan LR 138 (D); - 18 Deccan LR 535 (E); - 31 Deccan LR 143 (F); - 34 Deccan LR 267 (G) and - 35 Deccan LR 58 (H ). These rulings do not discuss the effect of admission of all the parties to the proceedings that there is a likelihood of breach of peace; therefore, it is unnecessary for me to discuss these authorities in detail. As a general proposition of law I agree with the principle urged. But there are certain cases where in spite of the Magistrate holding that there was no likelihood of breach of peace, he still, in the interests of justice, has got to pass an order regarding possession; for instance, where in the case of emergency the Magistrate has directed the possession of the property should be taken over by the police or by the Court, acting prima facie on the complaint or information before him, and when later he finds that there was no likelihood of breach of peace, he has got to make restitution of possession to the person from whom possession was taken by the police or by the Court.

(2.) ON the merits Mr. Apparao for the revision-petitioner contends that for ascertaining whether there was likelihood of breach of peace the Magistrate had called for a report from the Police; that the respondent has suo motu appeared in Court even without notice to her. On the other hand, Mr. Abdullah Thimmapuri, appearing for the respondent has pointed out from the counter of the respondent that the respondent has not denied the apprehension of breach of peace and that on the other hand she denied that she, being a poor and helpless widow, could have the courage or the strength to commit breach of peace, and that she asserted that the first party in collusion with the patwari of the village was trying to, create some trouble and interfere with her peaceful enjoyment. At this stage it is relevant to point out that between the parties there were also other proceedings of criminal nature. The respondent had filed two complaints before the police. The police took action against the r% vision petitioner (1) for theft and (2) for trespass in respect of other items of property of the respondent. In both the cases, the revision-petitioner was acquitted in appeal in the Sessions Court. That may be so, but it is a relevant circumstance to point out that at the crucial time there were certain misunderstandings and illfeelings between the two parties and that the first party was certainly trying to create some trouble as against the respondent. The respondent is a widow and her father-in-law appears to have been killed during the Police Action as is seen from the record.

(3.) I have now to consider on the merits as to which of the contentions of the two learned advocates is correct. I do not take the counter of the respondent to mean that there was no likelihood of breach of peace. I take it to mean that there was likelihood of breach of peace; only she denied that she could be responsible for it. The advocate for the respondent has quoted a ruling in - Gadagappa v. Chanbasappa 10 Deccan LR 107 (I) decided by a Division Bench of this High Court wherein it was held that the party who in the lower Court contended that there was apprehension of breach of peace should not be allowed in revision to contend that there was no apprehension of breach of peace. If such contention is accepted it would only mean that in other words the party really said that he had filed a false case in the lower Court and since the decision in the lower Court was against him he is now trying to blow hot and cold by reason of a plea contrary to what he had taken in the lower Court. Such attitude should not be encouraged or approved, for, it will open the door wide for fraud and untruth. I respectfully agree with this principle and only in exceptional and rare cases where the bona fides of the party are proved beyond doubt, could a contrary plea be permitted if it is otherwise consonant with the material on the record. Hence I hold that as both the parties admitted in the lower court that there was likelihood of 'breach of peace it was unnecessary for the Magistrate to have further proceeded to enquire whether there was likelihood of breach of peace and thus the only evidence that should have been allowed was with regard to possession. From the record I take it that the parties persisted to lead evidence as regards possession though the revision-petitioner has, in his statement in support of his claim for possession, also added a statement that the respondent was trying to dispossess him. There is no other evidence aliunde by the revision-petitioner or the respondent as regards breach of peace.