GIGARAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal misc. petition arises out of crimianl proceedings under Section 145, Cr. P. C. instituted upon a complaint filed 16. 12. 78 by Station House Officer, Police Station ,neem Ka Thana. It had been alleged in the complaint inter alia that there was a dispute in between the parties for an agriculture land bearing Khasra Nos. 1825 to 1828 admeasuring in total 13 bighas 4 biswas which admittedly belonged to the khatedari of pary No. 1 (non-petitioner Nos. 2 to 7) who are scheduled tribes;and that this land was pruchased by the party No. 2 (petitioners) on 11. 4. 1962from tha party No,1 through a sale-deed. It had been given out that the petitioner (party No. 2) being Mali belonging to general class, could not have pruchase this land by sale form pary No. 1 and that both the parties were adament and adhered to claim pssession over the said lad and to harvest standing crop by force, as a result of which, there were every likelihood of of breach of peace. The Statiion House Officer recommended proceeding being intitiated under Sections 107 & 116, Cr. P. C. against both the parites, in addition to a paryer that keeping in view imminent breach of peace, the land in dispute should be attached. howerver, the suvordinate Magistrate, considering facts & circumastances of the case, though it peroper to attach the disputed land and directed the Station House Officer to keep the disputed property under attachment and then deliver the same to the Tehsildar who was appointed as Reciver. It had been further directed that the parties should lead their evidence in support of their respective claims. Both the parties led evidence. The learned subordinate Magistrate, after considering the evidence adduced by the parties and hearing them, declared the possession of party No. 2 over the disputed land and further directed the party No. 1 not to interfere with their possession and not to dispossess the party No. 1 from the land in dispute till the matter is decided by a competent court. Against the aforesaid order of the subordinate Magistrate, dated 20. 3. 1989, the petitioners (party No. 2 ) preferred a revision petition before the Additional Sessions Judge, Neem ka Thana (Sikar), who, vide his order dated 23. 1. 1991, dismissed the revision petition. Hence this misc. petition.

(2.) AT the very threshold, learned counsel for the non-petitioner. Nos. 2 to 7 (party No. 1) raised a preliminary objection that the present misc. petition is not maintainable in view of the bar contemplated by section 397 (3), Cr. P. C. In support of his submission/objection, Shri P. C Jain cited decisions in 1990 (1) Crimes, P. 507, (1) and 1990 Cr. L. J. P. 1264 (2 ).