ASSAD GANAI Vs. STATE

JUDGEMENT

(1.) THIS rule is directed against an order dated 28-9-1972 of Shree Lakhpat Rai, Tehsildar, Executive Magistrate 1st Class Pahalgham, the relevant portion whereof is in these words: Perused the file and considered the statements of the witnesses. The evidence adduced by the applicant lends support to his application. The witnesses have unanimously slated that the applicant apprehends imminent breach of peace from the non-applicants-because the non-applicants pick up quarrels-with him every time which shows that there is apprehension of imminent breach of peace-on spot on the part of the non-applicants. Accordingly it is necessary that action should be taken against the non-applicants under Section 117, Criminal Procedure Code. I, therefore, direct that the non-applicants shall furnish personal bonds in a sum of Rupees 500/- each with surety for a like amount undertaking that for a period of one year they will not commit any act which might occasion breach of peace on the spot. Since-the non-applicants are not present, a notice shall be issued to them in this behalf. The file will come up on 28-10-1972. Announced.

(2.) THE order purports to be a final order made under Section 118, Criminal Procedure Code and yet it is described as an order made under Section 117, Criminal Procedure Code which provides for interim security for keeping peace until the conclusion of the enquiry. This state of the order lends itself to the inference that the trial Magistrate is either totally unaware of the relevant provisions of law or that he has dealt with the matter in a light-hearted manner or that the order is the product of efforts of some extraneous agency which may be his clerk in whose hand the order is written. Whatever the case, the trial Magistrate has acted in a most irresponsible manner least realising that his action had serious repurcussions on the liberty of the non-applicants. A by-product of his irresponsibility is that he has allowed three prosecution witnesses namely Sona Shat, Prithvi Nath and Khalil Bhat to make a joint statement. The statement too appears to be in the hand of the clerk which might suggest that the trial Magistrate had. allowed the case to be dealt by the clerk at his own level. There can be no other reason for this novel procedure unknown to criminal law.

(3.) COMING to the merits of the case, I cannot help observing that not only the order but the entire proceedings is untenable. The dispute in this case concerned a walnut tree. The applicant's case was that the tree "belonged to him and he was entitled to remove the fruit which, he said, the non-applicants did not permit. The case of the non-applicants on the other hand was that they were the real owners with their title supported by a decree of a Civil Court and as such they, and not the applicant, were entitled to remove the fruit of the tree. In this state of the matter, it was hardly fair to proceed against one party and thereby give the other party an unfair advantage over him. The proper course for the Magistrate to follow was to proceed against both parties and bind down the party who was proved not to have any title in the walnut tree. In any case, having decided to proceed against the non-applicants, alone, the trial Magistrate should have made an effort to ascertain the rights of the parties in the walnut tree with a view to deciding on which side the right lay. Without having come to a decision that the title was on the side of the applicant and the non-applicants unjustifiably obstructed him in the exercise of his right to remove the fruits, the trial Magistrate could not justifiably pass an order binding over the non-applicants to keep peace and maintain good behaviour. Clearly there is nothing in the order to show that any such thing was done by him. The trial Magistrate perhaps felt that it was necessary for him to discuss evidence much less to determine its admissibility. Apart from the joint statement of three witnesses referred to earlier there are some more statements of witnesses on record which are inadmissible in evidence because no opportunity was given to the non-applicants to cross-examine these witnesses. The learned Magistrate has, however, felt unconcerned about it. The non-applicants were unrepresented and as such the responsibility lay heavy on him to examine the case with care but he has miserably failed in his duty. He has been content vaguely to state that, on evidence, there was danger of breach of peace on spot on the part of the non -applicants and it was necessary to bound them over. An order based on such vague recitals borrowed from the words of the section is not sustainable. In these circumstances I am of the opinion that the proceedings and the order of the trial Magistrate based thereon are equally vitiated by improprieties and illegalities which have resulted in miscarriage of justice.