THAKUR SHERSINGH Vs. THANA

JUDGEMENT

(1.) THIS is a revision by Thakur Sher Singh of Balunda attacking the order of the learned District Magistrate, Pali, dated the 3rd of October, 1950, by which the order of attachment passed by the learned sub-Divisional Magistrates Jaitaran, was cancelled.

(2.) THE order of the learned District Magistrate is very sketchy, and is so completely bare of details that it cannot be said to be a judicial order. In the circumstance, it is necessary hat a few facts may be set out in order to show how the question calling for determination in this revision emerges. Gorawar is a Patta village of Thikana Balunda, and the well in dispute is situate in this village, and was in the possession of the Thikana. On the 11th of June, 1950 when the Thikana employees went to cultivate the Jav attached to the well, they were obstructed by the 18 non-petitioners proceeded against in the Court below, and the latter threatened to give these employees a thrashing if they insisted upon cultivating the land. THE result was that on the 16th of June, 1950 the Kamdar, Thikana Balunda, applied under section 145 of the Code of Criminal Procedure to the District Magistrate Pali, requesting him to take action against the persons mentioned above, as there existed a dispute concerning the land, which was likely to cause a breach of the peace. This application was made to the District Magistrate, Pali as an order was required immediately, but could not be obtained from the Court of the sub-Divisional Magistrate, Jaitaran, as he happened to be away on leave. THE learned District Magistrate, Pali, instead of keeping the application in his Court or sending it to the Court of the sub-Divisional Magistrate, forwarded it to the sub-Inspector, Kalu Police Station, and directed him to make inquiries and submit the report to the sub-Divisional Magistrate, Jaitaran for necessary action being taken against the non-petitioners. To say the least this procedure was wholly unjustified. It was imperative that the application filed by the Kamdar, Thikana Balunda, should have remained pending either in the Court of the District Magistrate, Pali, or in that of the sub-Divisional Magistrate, Jaitaran and the report could have been submitted to the court of the sub-Divisional Magistrate, Jaitaran, only if some application was pending in his Court. Be that as it may, no separate report was sent by the sub-Inspector, Kalu Police Station, and instead, he filed a fresh application in the Court of the sub-Divisional Magistrate, Jaitaran,on the 17th of July, 1950, and attached with it the application which had been filed on behalf of the Thikana. THE application by the sub-Inspector Kala, purported to be under section 107 and 145 of the Code of Criminal Procedure, and it was alleged therein that the non-petitioners were obstructing the Thikana, which was in possession of the well, and that accordingly, since there was an imminent danger of the breach of the peace, the Court was requested to take action both under section 107 and 145 of the Code of Criminal Procedure. On the 18th of July, 1950, the sub-Divisional Magistrate, Jaitaran, registered the case in his Court under section 107 of the Code of Criminal Procedure, and took action against the non-petitioners in as much as he called upon them to show cause. Some evidence was also recorded by him, but shortly after he was transferred. He was succeeded by another Magistrate, who, on scrutinizing the application filed by the Kamdar, Thikana Balunda, came to the conclusion that the facts contained therein warranted action under section 145 as well. He accordingly drew up a preliminary order under that section, and also attached the well in dispute. A revision was taken to the Court of the learned District Magistrate, Pali, against this order, and it was represented to him that it was not open to the sub-Divisional Magistrate to convert the proceedings under section 107 of the Code of Criminal Procedure into those under section 145 of the Code. THE learned District Magistrate did not give a clear finding on the point, but held that proceedings under section 145 of the Code could not be taken without a fresh complaint, and accordingly cancelled the order of attachment, without hearing the Kamdar, Thikana Balunda.