GAYA PRASAD Vs. EMPEROR

JUDGEMENT

(1.) The learned Sessions Judge of Jhansi has made this reference on the ground that the Magistrate had no power under Section 146, Criminal P.C., to order the attachment of the trees which had already been severed from the earth In Khata Khewat No. 6, patti Raghubar, mahal Rao Pahar Singh, village Patha, there are a large number of trees of various kinds which, it is claimed by the complainant, belong to certain minors. The complaint was filed by their guardian. The allegations were that Bhagwan Das and Gorey Lal Brahmans of village Piparia in collusion with Gaya Prasad, son of Bindraban began to cut those trees on 21 and continued to do so on 22-1-1946. He asked them to desist from cutting the trees, but the accused threatened him saying that they would kill and be killed but would not desist from cutting the trees. There was, therefore, an apprehension of the breach of the peace and the complainant prayed that the police might be asked to attach the trees pending the decision of the ease.

(2.) The learned Magistrate sent the complaint to the station officer for enquiry and report. The report from the police was that there was an apprehension of the breach of the peace. The trees were, therefore, attached on 31-1-1946, and notices were issued to the accused to show cause. On behalf of the accused an objection was taken that they were in rightful possession of the trees and they had a right to cut the same, and as regards the trees which had already been cut it was said that the Magistrate could not pass an order under Secs.145 and 146 of the Code.

(3.) The learned Magistrate after recording the evidence came to the conclusion that neither party could be said to be in exclusive possession of the trees and that there was an apprehension of the breach of the peace and it was, therefore necessary that the attachment should be maintained. He further held that the attachment of the trees cut would continue until the parties got their rights determined by the civil Court.