GOPI CHAND Vs. MOHD HANIEF

JUDGEMENT

(1.) By virtue of this reference order, the learned Sessions Judge Udhampur has recommended setting aside of the impugned order recorded by the learned Additional District Magistrate, Udhampur dated 17/7/ 2002 in proceedings under section 145 titled as Mohd. Hanief and anotherv. Ram Singh and Others.

(2.) It appears that an application under section 145 Cr.P.C. came to be presented before the learned Additional District Magistrate, Udhampur by Mohd. Hanief the respondent herein with the prayer for initiation of proceedings under section 145 Cr.P.C. stating therein that land measuring about 7 kanals comprising of survey No. 63 and land measuring about 4 kanals comprising of survey No. 64 located at village Kanjili tehsil Reasi purchased by him by an oral sale Deed against consideration amount of Rs. 50,000/-. That he is in possession of the said land from the year 1989. However, the respondents without any right whatsoever with respect to this land are bent upon to take forcible possession of this land as a result of which there is apprehension of breach of peace prevalent on spot on representation of this petition, the learned Magistrate came to be record the statement of the respondent herein and of his two witnesses, came to record the satisfaction about the breach of peace with respect the land in question and came to pass an order of attachment of this land with the direction that the same be placed on the superdnama of third person with the direction to maintain the account of its crop. Section 145(1) Cr.P.C. provides:

(3.) From the reading of the aforesaid section it is abandantly clear that before a preliminary order for initiation of proceedings under section 145 Cr.P.C., the Magistrate is under a legal obligation to draw a preliminary order, which should contain: satisfied as to the existence of a dispute likely to cause breach of peace concerning the possession of any land, water or boundaries thereof within his local jurisdiction;