BALGOVIND Vs. MAHADEVA

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Jhunjhunu in a case under sec. 145 of the Criminal Procedure Code. Party No. 1 are Balgovind and others and party No. 2 are Mahadeva and one other. Party No. 1 moved the police that there was danger to the breach of the peace over a certain nohra and baithak situated in the town of Ganganagar in Jhunjhunu District and that proceedings be taken under sec. 145 of the Criminal Procedure Code. The police moved the court of the Sub-Divisional Magistrate, Jhunjhunu and a preliminary order was passed on the 21st of March, 1950, calling upon the parties to file their written statements and produce evidence with respect to the fact of their actual possession In pursuance of the notice, party No. 2 filed written statement on the 28th of April, 1950, in which was denied that their was any danger to breach of the peace. Party No. 1 could not be served before the 22nd of August, 1950, on which date, they appeared and filed a written statement stating that they were in possession of the property in dispute. 28th of September, 1950, was fixed for the evidence of the first party but they failed to produce the evidence. Party No. 2 insisted that there was no danger to breach of the peace and the court might satisfy itself by inspecting the locality. A certain commissioner was appointed to inspect the locality and make a report. Thereafter, the case was transferred to the court of the Extra Magistrate, Chirawa, and in the meanwhile the Court of Extra Magistrate, Chirawa having been abolished, the case was sent to the court of Extra Magistrate, Jhunjhunu. The case was taken up on the 13th of Nov. , 1950, in the court of the Extra Magistrate, Jhunjhunu and it was ordered that notices be issued to party Nos. 1 and 2 again as their notices had not been returned. The case was next taken on the 13th of October, 1950, but on the said date, the notice to party No. 1 came back unserved. On the 4th of January, 1951, the party No. 1 appeared but no witnesses were produced and it was prayed that time be given for the production of witnesses. Party No. 2 again stressed that there was no danger to breach of the peace. On the 21st January, 1951, and 28th of February, 1951, the witnesses for party No. 1 again did not appear and on the 9th of April, 1951, the party No. 1 applied that adjournment of four months be given as one of "the witnesses of party No. 1 was ill. The court found itself unable to adjourn the case for four months but adjourned the case to 21st and 22nd of May, 1951, for the evidence of party No. 1 The case was again adjourned and 11th, 12th and 13th of June, 1951, were fixed for the evidence of the witnesses for party No. 1, but the witnesses were again not produced and the case was adjourned to 2nd, 3rd, 4th and 5th of July, 1951. Again on the said dates, no witnesses appeared on behalf of the first party and party No. 2 moved an application that because the case had been pending for 1-1/2 yrs. and there was no danger to breach of the peace, proceedings be dropped. The learned Magistrate heard the arguments, but deferred judgment and in the meanwhile fixed 7th, 8th, 9th and 10th of August, 1951, for the evidence of the witnesses for party No. 1. Only one witness for party No. 1 namely Prahlad appeared and no other witness appeared and therefore, 13th of August, 1951, was fixed. On the 13th of August, 1951, the case was adjourned for want of time and again on the 27th of August, 1951, the same was adjourned because one of the witnesses namely Ram Avtar for the first party had been transferred from the place to which summons was sent. On the 28th of August, 1951, when the case was taken up next, no witnesses were present for the first party and the case was adjourned to the 24th and 25th of September, 1951. On the 24th of September, 1951, again no evidence was produced and three witnesses for party No. 1 namely Pahlad, Surjan Singh and Sanwal Singh who previously appeared did not appear on that date inspite of information. The learned Magistrate, therefore, applied his mind to the question whether there was any danger to breach of the peace and after satisfying himself that there was none, he cancelled his preliminary order and dropped the proceedings, on the 25th of September, 1951.

(2.) AGAINST this order of the learned Magistrate, party No. 1 went in revision to the court of the Sessions Judge, Jhunjhunu who has made this reference and has, recommended that the order, regarding cancellation of the preliminary order be set aside and the case be sent back to the Magistrate for decision according to law.