KANHAIYALAL SAWANT KHATI Vs. CHHOGALAL GOPALJI KHATI

JUDGEMENT

(1.) THIS reference arises out of proceedings under section 107, Criminal Procedure Code. The proceeding arose on the application of one Kanhaiyalal who alleged that the non -applicant who was owner of an adjoining field destroyed the boundary -marks of the applicant on the basis of which he was fined Rs. 25 by the Tehsildar. Jagannath who also made common cause with the non -applicant Chogalal was fined Rs. 25 for trespass by the Nyay Panchayat. In addition to this Chogalal and Jagannath did not allow the Panchas to make a panchnama of the mischief, on the other band Panchas were abused.

(2.) THE learned Sub -Divisional Magistrate who recorded the evidence disbelieved Rama who was the star witness for Kanhaiyalal and according to him the other evidence was not sufficient to warrant the order to bind the non -applicant under section 107, Criminal Procedure Code. The Additional Sessions Judge before whom a revision was filed against that order disagreed with the view taken by the learned Sub -Divisional Magistrate and has referred this case to the High Court for an order binding down the non -applicant. The revisional order of the learned Sessions Judge shows that he was not satisfied regarding grounds for disbelieving Rama and he says "the reasons of the learned Magistrate for disbelieving Rama are in my opinion not good". The learned Sessions Judge further relied on other witness viz. P.W. Chatarsingh in order to show that the non -applicants No. 2 Jagannath and No. 3 Rameshwar were removing grass from a field of the applicant in spite of his protest. All this evidence has been disbelieved by the Sub -Divisional Magistrate but the Sessions Judge thinks that they should not have been discarded over and above holding a different view on the veracity of the witnesses the Sessions Judge's opinion was influenced by a subsequent incident which led to the conviction of the non -applicants under section 323, Indian Penal Code for causing hurt to the applicant.

(3.) A finding that there is apprehension of breach of peace by the Sub -Divisional Magistrate who beard the evidence cannot be set aside so lightly specially on the ground that the witnesses should have been relied on and that there was some incident subsequent to the institution of the proceedings under section 107 which led to the conviction. The Sub -Divisional Magistrate is necessarily in a better position to know the situation and unless it is shown that the refusal to pass an order is illegal or definitely improper an interference is not called for. The Sessions Judge was therefore not right in setting aside the order of the Sub -Divisional Magistrate merely on the ground that he holds a different view about the witnesses and that there was a subsequent conviction. Reference is therefore rejected.