MAHAVEER PRASAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The challenge to the order dated 21st April 1989 of the learned Additional Sessions Judge, Sikar is only on the ground that the learned Judge has wrongly observed that the learned Magistrate has not recorded his own satisfaction on the police report and only on the police report no case of emergency was made out and subject of dispute could not have been attached. The learned Additional Sessions Judge in his order dated 21st April 1989 had allowed the revision petition filed before him by the non-petitioner Nos. 2 to 13 against the petitioner, against the order dated 11th August 1983 of the learned Executive Magistrate attaching the subject of dispute treating the case as one of emergency.

(2.) The petitioner herein shall be described as party No.1 and the non-petitioner Nos. 2 to 13 as party No.2. Party No.1 filed an application u/s 145, Cr. P.C. against Party No.2 wherein it was stated that in accordance with the custom in the caste to which he belongs, he was adopted by Jeevaram Sb Mangla Megha, resident of Balaran and his wife on Miti Bhadwa Badi 5 Sanwat 2038 and all the necessary ceremonies of adoption took place and since then he and his father were in possession of the guwadiT. It was stated that party No.2 has no connection whatsoever with the immovable property in dispute and were never in possession but they made an attempt to forcibly enter into the possession of the guwadi, on 2nd August 1987. It was stated that there was apprehension of breach of peace in respect of the guwadiT by party No.2. The earned Executive Magistrate on the aforesaid complaint referred the matter to the S.H.O., Laxmangarh for enquiry and the S.H.O. after inquiry filed a report that there was a dispute in aspect of possession of guwadi in between the parties and serious incident may take place at any moment and breach of peace may take place. The learned Magistrate placed reliance on the police port and made an order u/s 145 which order is down as preliminary order and treating the case one of emergency, he attached the subject in dispute. A revision petition was filed before the learned Additional Sessions Judge who allowed revision petition and set aside the order of the learned Magistrate.

(3.) A perusal of the order of the learned additional Sessions Judge will show that it does appear from the order of the learned Magistrate as to in what manner there was apprehension of breach of peace. The learned AddI. Sessions Judge also said that while making the preliminary order u/s 145, Cr. P.C., the learned Magistrate should have reached to a conclusion that there was an apprehension of breach of peace in respect of possession of immovable property and mere reference to the police report is not sufficient.