MOTI Vs. STATE

JUDGEMENT

(1.) THIS criminal reference has been made by the Sessions Judge, Dharamsala, for quashing the order, dated 12-7-1973 passed by the Sub-Divisional Magistrate, Chamba. in proceedings under Section 145 of the Code of Criminal Procedure, 1898 declaring the possession of the disputed land in favour of Smt. Dhiko, Smt Bhutto and Hoshiara, and restraining Moti, Birbal, etc. from disturbing the possession of the respondents, Smt. Dhiko alleged that she along with her daughters was the owner of the land 5 bighas 19 biswas in village Karian in District Chamba. Smt. Dhiko on 26-5-1972 made a complaint before the Sub-Divisional Magistrate, Chamba complaining therein apprehension of breach of peace at the hands of Moti and eleven others in respect of the possession of the aforesaid land. This application purported to be one under Section 145 of the Code of Criminal Procedure. The Sub-Divisional Magistrate sent the complaint to the police, who after enquiry reported that there existed danger of breach of peace and that action may accordingly be taken against Birbal and others. The Magistrate by his impugned order found himself satisfied that Smt. Dhiko, Smt. Bhutto and Hoshiara, party No, 1, were in possession and that they should remain in possession of the land in dispute till the case was decided by the Civil Court. The opposite party was restrained from interfering with the possession of Smt. Dhiko, party No. 1.

(2.) AGAINST this order Moti and others went in revision before the learned Sessions Judge who has recommended that the order passed by the learned Sub-Divisional Magistrate should be quashed. The grounds are that there was no evidence on the record to show that there was likelihood of breach of peace on account of dispute between the parties over the land. The affidavits which were put in by party No. 1 in support of their being in possession of the land were not properly attested as required under the law and as such they could not be taken into consideration and the learned Magistrate was, therefore, wrong in basing reliance on the same for his satisfaction. The second ground is that the learned Magistrate had not discussed the contents of the affidavits and that the order was quite sketchy. The third ground was that Smt. Dhiko had gifted away the entire land in favour of her daughter Bhutto on 10-4-1972 and as such she had no locus standi to file the application being not in possession. The further ground in support of the recommendation is that there was nothing on the record to indicate if there was any danger of the breach of peace on the date when the preliminary order was passed and also on the date of the passing of the final order. The last ground mentioned was that the Magistrate failed to dispose of the case within two months of the date of appearance of the parties before him as is contemplated under Section 145 (4 ).

(3.) I have heard the learned Counsel for the petitioners and Shri H. K. Paul, Assistant to the Advocate General, and I find that there is force in this recommendation.