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Allahabad High Court · body

1973 DIGILAW 361 (ALL)

Ramji Lal v. Badan Singh

1973-08-24

K.N.SETH

body1973
JUDGMENT K.N. Seth, J. - In a proceeding under section 145 Criminal Procedure Code the learned Magistrate, after considering the evidence on record, arrived at the conclusion that the first party was in possession at the relevant time and accordingly directed that the second party shall not interfere with the possession of the first party. The second party went up in revision against the order of the learned Magistrate. The learned Judge has made this reference on the grounds. firstly, that the learned Magistrate acted in undue haste in being satisfied about the apprehension of breach of peace; and secondly, that there was no good evidence about the unsound mind of Nathi and the competence of Badan Singh to apply on behalf of Nathi before the Magistrate specially when the dispute was pending in a civil court and proceedings under Sections 107/117 Cr.P.C. were also pending. 2. I have carefully looked into the order of the learned Magistrate and also looked into the referring order and I find that the approach of the learned judge is wholly illegal. When the application was made for initiating proceedings under section 145 Criminal Procedure Code the learned Magistrate called for a report from the S.O. concerned but the S.O. did not comply with the order of the learned Magistrate and evaded giving his report Thereafter the complainant filed an affidavit in support of his assertion that there was an apprehension of breach of peace. In view of the attitude adopted by the S.O. in withholding his report, the learned Magistrate was justified in acting upon the affidavit filed by the first party. The law does not require at that stage any thing except the prima facie case that there was an apprehension of breach of peace. In the absence of any report by the S.O. the learned Magistrate was quite justified in placing reliance on the affidavit filed by the first party. The learned judge has jumped + to the conclusion that there was no sufficient material" before him by which he could feel satisfied about the apprehension of breach of peace. The sufficiency or insufficiency of the material was not within the competence of the learned judge to decide. If the learned Magistrate felt satisfied that there was some material for coming to that conclusion, it could not be said that the Magistrate had no jurisdiction to proceed with the matter. The sufficiency or insufficiency of the material was not within the competence of the learned judge to decide. If the learned Magistrate felt satisfied that there was some material for coming to that conclusion, it could not be said that the Magistrate had no jurisdiction to proceed with the matter. The learned Magistrate in his order has given detailed reasons why he could not wait for the report of the S.O. In fact he came to the conclusion that the S.O. was siding with the other party and for that reason he was withholding the report. The order of the learned Magistrate, therefore, could not be struck down on the ground that it was passed without waiting the report of the S.O. 3. As regards the question whether Badan Singh was competent to move this application, the learned Judge again seems to be proceeding on a misapprehension of law. It was not necessary that Badan Singh should have proved positively that Nathi was an insane. He had filed a certificate from the Civil Surgeon to that effect. That evidence may not have been quite sufficient to a case under the Lunacy Act or to a case under the Guardian and Wards Act for appointment of a guardian of a person of unsound mind but in a proceeding under section. 145 Criminal Procedure Code any person could bring to the notice of the Magistrate that there was apprehension of breach of peace and proceedings under section. 145 Criminal Procedure Code were called for. The mere fact that according to the learned Judge it was doubtful whether Nathi was actually of unsound mind would not have the effect of rendering the order of the learned Magistrate without jurisdiction. It was open to him to act on an information received from any party whether he was legally competent to act as the guardian of some body else or not. 4. The pendency of the civil suit regarding title to the property in dispute or the fact that proceedings under section 107/117 Criminal Procedure Code were pen- ding at the time when the action was taken under section 145 Cr.PC. 4. The pendency of the civil suit regarding title to the property in dispute or the fact that proceedings under section 107/117 Criminal Procedure Code were pen- ding at the time when the action was taken under section 145 Cr.PC. could not vitiate the jurisdiction of the Magistrate to proceed under section 145 Criminal Procedure Code The civil suit was concerned with the question of title which was beyond the scope of the proceedings under section 145 Criminal Procedure Code Badan Sing might have failed to obtain injunction order but that had no bearing on the questions whether there was apprehension of breach of peace or the person who was actually in possession of the property on the relevant date. It is also well settled that the pendency of proceedings under section 107/117 Criminal Procedure Code is no bar to a proceeding under section 145 Criminal Procedure Code 5. The learned Magistrate directed that the second party be restrained from interfering with the possession of the first party. Before the Magistrate there were a large number of affidavits in support of the claim put forward by the first party. Four affidavits filed by the second party were not properly sworn and the fifth one could not be relied upon as the deponent had changed sides. The learned Magistrate was right in discarding the affidavits filed by the second party. In the absence of those affidavits there was no material on record to show that the second party was in possession on the relevant date. The second party primarily relied on the alleged sale deed in their favour but neither a copy thereof nor the original sale deed was filed or produced before the learned Magistrate. The revenue entries. were also in favour of the first party. In view of this state of evidence the learned Magistrate rightly directed that the second party should not interfere with the possession of the first party. 6. For the reasons mentioned above I reject the reference.