MADAN CHANDRA BARUA Vs. MUKHESWAR PHUKAN

JUDGEMENT

(1.) THIS is a reference from the Ses J. U. A. D. It arose out of proceedings under Section 145 Cr. P.C. which culminated in an order under Section 146 Cr P.C. by Which propery in dispute was attached and it was directed that the attachment shall continue till one of the contending parties was declared entitled to possession of the property by a competent Civil Ct. The Second Party feeling Aggrieved by the order preferred an appln for revn in the Ct of the Ses J. The learned Ses J. came to the conclusion that the order of attachment passed by the learned Mag requires to be set aside and he has referred the case to this Ct under Section 438 Cr. P.C.

(2.) THE land in dispute is covered by periodic patta No. 17 of village Bubhurial. It measures 7 B. 1 K 16 L. The patta formerly stood in the name of Gathalu Ahom. He transferred it by a registred deed of sale dated 9 -3 -1949 to Madan Chandra Barua the 2nd party in the trial Ct. who was the petnr in the Ses Ct. Be got his name mutated in the revenue records. Mukheswar Phukan (the 1st party in the trial Ct) is admittedly holding land contiguous to the land in dispute. He is a discharged Asst Sub -Inspector of Police. He applied for proceedings under Section 145 Cr. P.C. on 28 -4 -1949 alleging that the 2nd party, Madan Chandra Barua was making preparations to take possession of the land.

(3.) THE learned Ses J. has pointed out that the learned Mag has not given any finding that there was any likelihood of the breach of the peace in his final order This omission on the part of the learned Mag in his view would be fatal to the order. He thought that a finding that there was likelihood of the breach of the peace should have formed part of the final order, and in its absence no order could have been passed under Section 145 or 146, Cr. P.C.