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2004 DIGILAW 532 (MP)

SARWAR BEG v. SATYANARAIN

2004-07-11

SUGANDHI LAL JAIN

body2004
ORDER S.L. Jain, J. Invoking extraordinary jurisdiction of this Court u/s 482, Criminal Procedure Code, the applicants have filed this petition for quashing the order dated 9-10-2000 passed by the S.D.M., Hoshangabad, in Case No. 5/2000 and order dated 28-5-2000 passed by the Addl. Sessions Judge, Hoshangabad in Cr. Rev. No. 123/2000. A complaint u/s 145, Criminal Procedure Code was filed by Station House Officer, police station Babai, Distt. Hoshangabad alleging that a dispute in relation to land Khasra Nos. 59/6 and 59/8 situated at Village Bhatwara, is likely to cause breach of peace within his local jurisdiction. On the basis of this report, S.D.M., Hoshangabad, was satisfied that dispute is likely to cause a breach of peace. The Magistrate issued a preliminary order and directed the parties concerned to put in written statement of their respective claims in respect of the fact of actual possession of the subject in dispute. On 9-10-2000 both the parties appeared before the S.D.M. Party No, 1 requested the Court to attach the crop. The learned Magistrate at that stage was unable to satisfy himself as to which of the parties was then in possession of the subject in dispute, he directed the attachment of the crop. Being aggrieved by the order of S.D.M. Hoshangabad, the applicants filed a revision petition before the Addl. Sessions Judge, Hoshangabad, which was dismissed vide order dated 28-5-2001. I have heard Shri Aditya Adhikari, learned counsel for the applicants and Shri Asim Dixit, learned counsel for the State. None appeared for respondents No. 1 to 3. Learned counsel for applicants vehemently argued that the order of attachment can be passed when the Magistrate considers the case to be one of emergency. The mere fact that there is likely to be apprehension of clash between the parties owing to the standing crop that by itself cannot be said to be emergency within the meaning of section 146 Criminal Procedure Code. The Magistrate must record a clear finding that in his opinion the case is one of emergency. The contention cannot be accepted. It is not necessary that the specific word emergency should be mentioned in the order. The Magistrate has mentioned in his order that there is likelihood of breach of peace. Moreover the order impugned reveals that the Magistrate was unable to satisfy himself as to which of the parties was then in possession. The contention cannot be accepted. It is not necessary that the specific word emergency should be mentioned in the order. The Magistrate has mentioned in his order that there is likelihood of breach of peace. Moreover the order impugned reveals that the Magistrate was unable to satisfy himself as to which of the parties was then in possession. When in a exceptional case, it is quite impossible as to which of the parties was in possession the Magistrate committed no error in directing the attachment of the crop. When a finding of fact was arrived by the SDM on appreciation of the material before him, the same cannot interfered with by the High Court while exercising jurisdiction u/s 482, Criminal Procedure Code. In a petition u/s 482, Criminal Procedure Code it is not the practice of the High Court to go into the disputed question of fact. It is not open to a party to assail a concurrent finding of fact given by two courts below. It is not a case where a glaring thing is brought to the notice of this Court which proved beyond any shadow of doubt that the facts mentioned in the order are not true. When there was a clear finding in the order of the SDM that the apprehension of breach of peace exists, existence of emergency was implicit in the order, therefore, it will not be appropriate to interfere with the orders of the courts below. The petition is, therefore, sans merit and the same is dismissed.