AZAD SINGH Vs. RUPLA

JUDGEMENT

(1.) THE police submitted an information under Section 145 of the Code of Criminal Procedure to the Executive Magistrate, Sonepat. It referred to the dispute between petitioner Azad Singh son of Net Ram and Rupla son of Sardara residents of village Bajana Kalan. There was a dispute regarding a piece of land mentioned in that information and there being apprehension of breach of peace. Petitioner Azad Singh was mentioned to be the person in possession. The Executive Magistrate, Sonepat took cognizance under Section 145 Code of Criminal Procedure and on 12.2.1993 held that first party Azad Singh was in possession on the disputed piece of land.

(2.) RUPLA preferred a revision in the Court of Sessions at Sonepat. Learned Additional Sessions Judge, Sonepat vide the impugned order dated 19.4.1994 accepted the revision and set aside the order passed by the learned Magistrate. The revision was accepted primarily on the ground that admittedly at the relevant time when proceedings under Section 145 Cr.P.C. were initiated, a civil suit for injunction was pending between the parties. Keeping in view the proceedings pending between the parties in the civil court initiation of action under Section 145 Cr.P.C. was not legal. Furthermore it was held that preliminary order under Section 145 Cr.P.C. was not passed and otherwise also the police information indicated that Azad Singh was in possession. In these circumstances, the order passed by the trial Court was set aside.

(3.) ON the strength of the same it was urged that no preliminary order had been passed and, therefore, the learned Additional Sessions Judge was justified in setting aside the order passed by the Executive Magistrate. Passing of a preliminary order is so basic that only thereafter the Magistrate gets jurisdiction to proceed under Section 145 read with Section 146 of the Cr.P.C. These provisions have been enacted to meet such a situation where there is likelihood of breach of peace because of dispute concerning any land, water or the boundaries. The said scope was explained by the Supreme Court in the case of Mathuralal v. Bhanwarlal and another, 1980 C.C. Cases 6(SC) in the following words :-