NIKA Vs. AKA

JUDGEMENT

(1.) THIS rule is directed against the order of the learned Additional Sessions Judge, Patiala, who declined to interfere in revision with the order passed by the Magistrate, Mrs. S.K. Gill, under section 145 of the Code of Criminal Procedure.

(2.) THE petitioners Nikka Singh and his brothers are in possession of the disputed land situate in the abadi of village Batta measuring 69 feet in length and 27 feet in width. The respondent Aka applied on 3rd of August, 1961, that the petitioners Ram Singh, Hazara Singh, Sadhu, Sunder and Nikka had obtained possession of the disputed land "11/4 month back" and as the land was claimed by him as his own there was an apprehension of breach of peace. The preliminary order was passed by the Magistrate on 31st of August, 1961, wherein it was stated that he was satisfied that the dispute between the parties was likely to cause a breach of peace and called upon the parties to file written statements or affidavits in respect of their claims on 15th September, 1961. The final order was passed by Mrs. Gill on 1st of March, 1962. and Akka was ordered to be put in possession. Nikka Singh and others filed a petition before the Sessions Judge, Patiala, which having been rejected on 5th of April, 1963, they have again come to this Court in revision.

(3.) IT seems to me that the satisfaction of the Magistrate before he passed the preliminary Order has to be based either on a police report or other information under sub -section (1) of section 145. There was no report of the police and the affidavits filed on behalf of the respondents do not disclose the existence of a dispute which might have caused a breach of peace. As I have said, even forcible dispossession cannot always give rise to a breach of peace. It appears to me that there was no justification for the Magistrate to have passed the order which is sought to be impugned.