HARIHAR SINGH Vs. EMPEROR

JUDGEMENT

(1.) This rule has been issued on an application which purports to be a petition under Section 526, Criminal P.C., though the last of the "grounds" is that the proceedings before the Magistrate should be quashed in view of the admission on behalf of the prosecution witnesses that there are no crops standing on the fields, all having been out away by the first petitioner. Mr. Akbari who appears for the petitioners, states, that, in point of fact, the rule was issued not on the question of transfer but on the point whether in view of the decision in Saddique V/s. Shaikh Mohid, A.I.R. 1930 Pat 556, which follows the decision in Shama Charan V/s. Emperor, A.I.R. 1925 Pat. 610, the proceedings under 8. 107, Criminal P.C., should not be quashed, leaving it open, presumably, to take proceedings under Section 145 of the Code. Mr. Akbari has now argued both points and without calling upon Mr. Manuk who is for the opposite party, I am satisfied that the rule must be discharged.

(2.) The facts are briefly these: Following on a champertous transaction of 27th February 1932, between petitioner 1 and Aziz, the son of a former owner, Umatul Fatma, who had mortgaged the mukarrari villages Nadiwan and Nanian in Gurwa police station, and Karmain in police station Sherghati in favour of the father of Upendranath Banarji who and whose successors had by virtue of various Court sales thereafter become mukarraridars and were in possession; petitioner 1, his transferor and another instituted title Suit No. 9 of 1932, in the Court of the Subordinate Judge of Gaya on 21 February 1932, and promptly began to interfere with the possession of Upendranath Banarji with a view to preparing evidence for the suit, so that about 20 March 1932, the police of both stations requested that action under Section 144, Criminal P.C., be taken against the petitioners. The Sub-divisional Magistrate made the order absolute on 20 May 1932, holding that the claim of the petitioners was a mere pretence and the superior Courts declined to interfere. Meantime, on 17 May 1932, the Sub-Inspector of Gurwa reported for action under Section 107 against the petitioners and the Subdivisional Magistrate drew up proceedings, which however failed, the view of the Magistrate being that the dakhaldehani papers not being proved the present possession would seam to be with the petitioners.

(3.) The District Magistrate differed as to possession and directed that if the opposite party should try to disturb Banarji's possession in face of the orders under Section 144, the local police should draw up proceedings under Section 107 on further evidence of likelihood of a breach of the peace. An application against this order was dismissed in the High Court with an observation that the remark of the District Magistrate as to possession was not necessary for the purposes of his decision. Next the Sub-Inspector of Sherghati asked for proceedings under Section 144 on both parties, but the Sub-divisional Magistrate on 24 February, 1933, made the order absolute against the petitioners.