LADU Vs. DHULA

JUDGEMENT

(1.) THESE proceedings resulting in the present revision disclose how Criminal Procedure can be subjected to untold abuse and embarrassment to the public. They were initiated on a petition by Dhula and others to the effect that Ladu and others were encroaching upon Khalsa land and that they should be prevented from doing so because it was likely to result in public nuisance within the meaning of section 133 of the Criminal Procedure Code. When the matter came up before the Magistrate seized of the petition, he called for a report from Sub-Inspector Police and on his report took action not under section 133 but under section 145 Criminal Procedure Code after passing a preliminary order to the effect that there was a likelihood of a breach of the peace on account of the action taken by Ladu and others. Thereafter a notice was issued to Ladu and others, and on their offering resistance, the learned Magistrate inspected the site and, finding that there was no basis for the view which had been taken by him, dropped all the proceedings. The interim order of attachment which had been issued by him also went with these proceedings. Dhula and others took the matter in revision to the learned District Magistrate who, without carefully scrutinizing the proceedings taken by the learned Magistrate, passed an order which cannot be supported in law for a moment. He was seized of the case in revision and, therefore, his powers were limited to those prescribed in section 438 Criminal Procedure Code. According to this section it is open to him, if he thinks fit on examining the record, to report for the orders of the High Court the result of such examination and is competent to suspend the execution of an order passed by the Magistrate only if his report contains a recommendation that the order be reversed or altered. There being absolutely no report to the High Court and accordingly no recommendation, it is obvious that the order of suspension passed by him was contrary to law. Apart from this, the learned Magistrate should have carefully seen whether after the proceedings had been dropped by the learned Magistrate of the trial Court, it was still open to him to suspend any particular order without first reviving those proceedings. For the revival of those proceedings, it was absolutely essential that he should first see whether there was a likelihood or an apprehension of a breach of the peace. For this, it is conceded by the learned Government Advocate, there is absolutely no basis on the record. The learned Government Advocate was under the impression that possibly the report of the Police contained something to the effect but that impression turns out to be wrong. In the circumstances there is absolutely no point in continuing the present proceeding and they must be quashed and I hereby order accord--ingly. The result is that this revi-sion succeeds and is hereby accepted and the order passed by the learned District Magistrate set aside. .