YOUNGRIN CHHETAN Vs. TARJIN CHHOLAK

JUDGEMENT

(1.) THIS petition under revision is directed against the order of the Sessions Judge, Simla confirming in revision another order of the Magistrate Ist Class, Pooh, whereby he has dismissed a complaint filed under Section 145 of the Code of Criminal Procedure. The facts giving rise to the complaint are, that the Petitioner Chhetan claimed to be in possession over I bigha and 16 biswas of land bearing khasra No. 445 and situate in village Gyabong of Tehsil Pooh. Admittedly he was dispossessed by chholak -owner of the land on 13.3.1971. Thereafter he filed a complaint on 17.3.1971 under Section 145 of the Code of Criminal Procedure. According to him the Respondent had threatened his mother who went to object for illegal dispossession. The Magistrate having been satisfied initially with allegations made in the complaint made the preliminary order on 30.8.1971 fixing 30.9.1971 as the date up to which the parties were called upon to produce their written statements. Thereafter on 20.10.1971 the Respondent put in his objection which was to the effect that the Magistrate had no jurisdiction because the Petitioner was already dispossessed more than two months before the passing of the preliminary order, that there was no apprehension of a breach of the peace and that a proceeding under Section 447 of the Indian Penal Code for wrongful dispossession was pending in Court. The counsel representing the Petitioner gave out before the Magistrate that his real purpose was to take possession although the Petitioner had already instituted proceedings under Section 447 of the Indian Penal Code. The learned Magistrate, finding that the Petitioner was dispossessed two months before the passing of the preliminary order and that there was no apprehension of breach of peace cancelled the preliminary order and dropped the proceedings. Against that order a revision was filed before the Court of the Sessions Judge.

(2.) THE learned Sessions Judge agreed with the learned Magistrate and held that there was no apprehension of breach of peace which was sine qua non for conferring jurisdiction. Accordingly he too confirming the order of the Magistrate dropped the proceedings. Now the Petitioner has come up in second revision before this Court.

(3.) IT is contended by the learned Counsel on behalf of the Petitioner that the Magistrate was duty bound to go through the affidavits filed before him. Once he had passed the preliminary order he could not drop it in such a manner as he has done. In my opinion, under Section 145(5), nothing precludes a Magistrate to cancel the preliminary order if the Respondent succeeds in showing that no dispute likely to cause the breach of peace exists or has existed. Therefore, the order of the Magistrate was under Section 145(5) because for the reasons stated he was satisfied that no dispute likely to cause the breach of peace ever existed. Both the learned Magistrate and the learned Sessions Judge have considered the circumstances made out in the case. A reasonable view could be taken upon the statement made by the counsel, upon the fact of no incident of breach of peace having arisen and upon the criminal proceedings under Section 447 of the Indian Penal Code already taken up by the Petitioner, that there was no longer any apprehension of breach of peace. It was a mere case of dispossession by the rightful owner and the Petitioner could go to a Civil Court to seek his redress. Moreover, the preliminary order was passed long before the expiry of two months next before its date and no presumption could arise in favour of the Petitioner.