SUNDER Vs. SHEONATH

JUDGEMENT

(1.) THESE are two applications by Sunder and others, second party, in two cases -one under sec. 145 and the other under sec. 107 of the Criminal procedure Code, for transfer of the two cases from the court of Shri Naginlal B. Sadasukhi, sub Divisional Magistrate, Shahpura. The grounds given for the transfer of the two cases are that the Magistate is on very good terms with Sheonath, the first party, who is generally seen at the Magistrate's house before each hearing and brings ghee, grain etc. , for the Magistrate from his village, that the Magistrate is simultaneously carrying on proceedings under sec. 145 and 107 Cr. P. C. although the dispute alleged is with regard to the same property, thus causing great inconvenience and harassment to the second party and their companions, that the land is in possession of the second party, yet in order to oblige the first party the Magistrate is bent upon attaching it, that the Magistrate made an order prohibiting the second party from going to and using the land in their possession before any order is passed under the law; and that the Magistrate issued warrants and orders of attachment of property without any summonses being served upon the second party.

(2.) THE reply of the learned Magis-trate has been received and he has denied that he is on any terms, good or bad, with the first party or that the first party ever came to his residence. He has also denied that he is offered ghee or any other thing by the first party. He further says that he has as yet issued no orders of attachment and that he is taking separate proceedings under sec. 145 from the very beginning. He adds that the second party and their pleaders put various obstacles in the proceedings and did not allow the court to hear the arguments on 2nd August 1951. THE learned Magistrate also says that he has no idea of attaching the property unless circumstances make it incumbent for the preservation of peace. He finally says that the second party were summoned for 21st June, 1951 but they did not appear and sent a Vakil for representing them. Later on after many adjournments were procured the case was fixed for 22nd Aug. , 1951 for arguments on the application for interim security. On the said date inspite of the fact that Pt. Rameshwar Parsad Vakil for the second party was present, they applied for adjournment to produce Shri Hanuman Sharan Advocate for arguments. As a lot of time had already been spent in service and other things the court thought it proper to adjourn the case to any day suitable to the second party, provided they were prepared to give an undertaking of not going to the disputed land and doing any act subversive to maintenance of peace up to the date to which the case was adjourned. Magistrate admits that there is no provision either under sec. 107 or sec. 145 for prohibiting any party from going to the land in dispute.