EMPEROR Vs. GANIKHAN

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge, Akola, in connexion with an order made by the Sub-Divisional Magistrate of Akot and Balapur, in a. proceeding under Section 145, Criminal P.C., under the following circmstances.

(2.) PARTY No 1, Ganikhan, obtained possession through Court under a civil Court's de Tee, of the field in dispute described as S.N. 32 pot hissa 3, 9 acres 1 guntha of mauza Malrajura on 26th August 1926. On 14th September 1926 he moved the Magistrate to initiate proceedings under Section 145, Criminal P.C., alleging that Party No. 2 had wrongfully dispossessed him on 11th September 1926, i.e., he moved the Magistrate to take action, within three days of his eviction and 19 days of his entry into possession. He ran up to the Magistrate for redress, as he was afraid that there was imminent danger of a breach of the peace occurring. The Magistrate, if I may hazard a conjecture, was not perhaps satisfied that there was the likelihood of a breach of the peace as there was nothing before him beyond the mere assertion of Party No. 1, and he, therefore, thought fit to invite a police report by the end of the month. In doing so he sent the application itself in original for enquiry and report to the police. The police report thus called up, though ordered to be made by the end of September, was not made until 19th October 1926 by the head constable, who was deputed for the purpose by the Sub-Inspector, Station House Patur. The same was forwarded by the Sub-Inspector to the Circle Inspector, Balapur, on 20th October 1926, and he in his turn forwarded it to the Deputy Superintendent of Police, Akola, who ordered the papers to be returned to the Sub-Divisional Magistrate under endorsement dated 27th October 1926, though the papers could thus reach the Magistrate's Court on 28th October 1926, they remained uncared for either with the Court Reader or the Magistrate himself until 12th November 1926.

(3.) FOR the delay since 28th October 1926, when the report reached him, the Magistrate alone could be regarded as being himself responsible. Unless it could be explained away on the ground that he was not satisfied as to the existence of a, dispute which was likely to cause breach of the peace, he had absolutely no excuse to delay the passing of such orders as the urgency of the case deserved until 12th November 1926. It is no doubt possible to conjecture that the Magistrate had not made up his mind as to whether there was a present real dispute concerning the land, i.e., about the actual possession of it. It is also likely that he was wavering, and was not definitely prepared to hold that the breach of the peace suggested by Party No. 1 and the police was not merely colourable and made to induce him to deal with questions properly cognizable by a civil Court. But his sudden activity on 12th November 1926 does not justify this conjecture. The Magistrate had been practically stirred into activity, as it were on that day, and tried to mend matters by hurriedly recording a formal preliminary order under that date without complying with the requirements of the law. But he was too late by one day. He perhaps never realized that the petition contained the admission of Party No. 1 that he was actually dispossessed on 11th September 1926 and that Party No. 2 was in actual possession, and further that Party No, 1 had in para. 4 of his petition actually prayed for being restored to possession and that this was, therefore, a case in which Party No. 1 should under the prov. 1, to Sub-section 4 be treated as being in such possession, and that an order merely declaring one party to be entitled to possession and forbidding all disturbance of such possession was insufficient, but that, if the investigation pointed to that conclusion, there was a necessity to pass an order for restoration of possession to him as the party forcibly and, wrongfully dispossessed" as contemplated by Sub-section (6) of the said section.