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Hari Shanker and ors. Vs. Shri Bali - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1973CriLJ4
AppellantHari Shanker and ors.
RespondentShri Bali
Excerpt:
.....after a perusal thereof the magistrate was satisfied that there existed an apprehension of the breach of peace. the tahsildar-magistrate therefore, recommended that the opposite party be punished according to law. i am satisfied that this reference is well founded and it must be accepted. a perusal of the order of the magistrate dated 17th october 1970 clearly shows that he has considered the evidence on the record before arriving at a finding that there did not exist any apprehension of the breach of peace and also the finding that hari shankar and others were in possession of the disputed land. it may be that the dropping of the proceeding by the court dated the 9th september 1963 without indicating anything about the assertion of the apprehension of the breach of peace between the..........order and dropped the proceedings. thereafter on 17th october 1970 sri bali appeared in court and filed an application for reconsideration of the aforesaid order. this application was dismissed in default on 27th september 1970. he then moved a second application on 30th november 1970 for reconsideration of the above-mentioned order. this application of shri bali was allowed by the magistrate on 2.1.1971 and he directed a date to be fixed for evidence. the order of the magistrate dated 2.1.1971 is quoted thus:the order dated 17.10.70 was passed by sri r.a. dubey the then s.d.m. in the absence of the first party 1970 all cr. c 202 has reported a judgment of the hon'ble high court of mysore. d/-16.4.1970 in which justice honniah has held that a complaint (under section 145) is not liable.....
Judgment:
ORDER

P.N. Bakshi, J.

1. This is a reference made by the Ist Temporary Civil and Sessions Judge Jaunpur in proceedings under Section 145 Cr.P.C.

2. Sri Bali moved an application on 27th June 1970 alleging that he was in possession of plot No. 1610/1 situate in village Barain, Police Station Jalalpur, district Jaunpur and that the opposite party was interfering with his possession which was likely to lead to breach of peace. On these allegations he prayed that action be taken under Section 145 Cr.P.C. The Sub-Divisional Magistrate called for a report from the Station Officer Jalalpur. The Station Officer submitted his report on 2nd July 1970; after a perusal thereof the Magistrate was satisfied that there existed an apprehension of the breach of peace. As such he issued a preliminary order on 3rd July 1970 requiring the parties to put in written statement of their respective claims about possession and also to file affidavit in support of their claims. He further directed the property in question to be attached. The said property was attached on 27th July 1970. On 12th August 1970 Sri Bali made an application for time for filing written statement. Time was granted till 18th August 1970 but no written statement was filed. He again applied for time on 18th August 1970. This application was also granted yet no written statement Was filed. He made a third application for time. Even that was granted but yet no written statement was filed. Hari Shankar. however, filed his written statement on 7th September 1970. He also filed affidavits and documents in support of his claim. It was pleaded by Hari Shankar that he was in actual possession of the land in dispute and that there was no apprehension of the breach of peace. The case came up for hearing on 17th October 1970, on which date Sri Bali was absent. Payment of costs as ordered by the Magistrate while granting time to Sri Bali for filing written statement was also not made. No evidence was produced by him. After hearing the counsel for Hari Shanker and others the learned Magistrate arrived at a conclusion that there was no apprehension of breach of peace. He considered the evidence produced on behalf of Hari Shanker and also arrived at a finding that the land in dispute was in his possession. He, therefore, cancelled the preliminary order and dropped the proceedings. Thereafter on 17th October 1970 Sri Bali appeared in Court and filed an application for reconsideration of the aforesaid order. This application was dismissed in default on 27th September 1970. He then moved a second application on 30th November 1970 for reconsideration of the above-mentioned order. This application of Shri Bali was allowed by the Magistrate on 2.1.1971 and he directed a date to be fixed for evidence. The order of the Magistrate dated 2.1.1971 is quoted thus:

The order dated 17.10.70 was passed by Sri R.A. Dubey the then S.D.M. in the absence of the first party 1970 All Cr. C 202 has reported a judgment of the Hon'ble High Court of Mysore. D/-16.4.1970 in which Justice Honniah has held that a complaint (under Section 145) is not liable for dismissal due to the absence of complainant. The above order is, therefore, against law and not sustainable. Fix 12.1.1971 for evidence.

3. Thereafter on 6th February 1971 a written statement was filed by Sri Bali. He also filed an affidavit of Ambika Prasad and others in support of his claim about the possession of the disputed land. On 6.2.1971 the Sub-Divisional Magistrate directed the Tahsildar to make a local inspection and to report by 25.2.1971. On 22nd April 1971 the Tahsildar-Magistrate submitted his report in which was mentioned that 'the breach of peace is always hanging. The Tahsildar-Magistrate therefore, recommended that the opposite party be punished according to law.' Thereafter the Magistrate (heard the parties and came to the conclusion that there existed an apprehension of breach of peace in respect of the attached land and that Sri Bali the first party was in possession of the land in dispute two months prior to the passing of the preliminary order. This order was passed by the Sub-Divisional Magistrate on 5th July 1971.

4. Aggrieved therefrom Hari Shanker and others filed a revision before the Temporary Civil and Sessions Judge Jaunpur. who has made a reference to this Court for quashing the order of the Sub-Divisional Magistrate dated 5th July 1971 and all the orders passed and proceedings undertaken by him subsequent to the order dated 17th October 1970.

5. I have heard learned Counsel and have also perused the record of the case. I am satisfied that this reference is well founded and it must be accepted. A perusal of the order of the Magistrate dated 17th October 1970 clearly shows that he has considered the evidence on the record before arriving at a finding that there did not exist any apprehension of the breach of peace and also the finding that Hari Shankar and others were in possession of the disputed land. The order dated 17th October. 1970. therefore, does not suffer from any legal infirmity. It is not an order which has been passed merely on the ground that the first party was absent. Had it been so, it could have been urged by the learned Counsel for Sri Bali that the order was without jurisdiction. Even then the point would have arisen as to whether the Magistrate had jurisdiction to recall the said order. However that is not the case before me. The factual position is that the order has been passed on merits after consideration of the evidence on record. By this order the second party Hari Shanker and others have been found in possession of the land in dispute and the proceedings under Section 145, Criminal Procedure Code initiated on the original application of Sri Bali have been dropped. If Sri Bali was dissatisfied with this order it was open to him to have filed a revision therefrom and to have made a request to the revisional Court to refer the case to the High Court for quashing the order dated 17th October 1970. Once an order has been passed in conformity with law dropping the proceedings and holding one party to be in possession such an order can only be set aside according to the procedure prescribed by law. There is no jurisdiction left in the Magistrate to reconsider this order and to vacate it on the application of one of the parties. It has been held in 1967 Cri LJ 1359 (Pat). Jyotish v. Dwarka Prasad as follows:

It may be that the dropping of the proceeding by the Court dated the 9th September 1963 without indicating anything about the assertion of the apprehension of the breach of peace between the parties was bad; but once, right or wrong, the proceeding was dropped, the learned Magistrate, by the impugned order could not review it on the basis of the old police report of 1956. when there was no fresh material before him to suggest that there was any apprehension of the breach of peace between the parties If there was however, any such apprehension, he could have been within his rights to have drawn up a fresh proceeding, but he could not by any means revive the dead proceedings. The impugned order reviving the proceedings is. therefore, bad in law.' Counsel appearing on behalf of Shri Bali has urged that on the subsequent application filed on 13th October 1970 the Sub-Divisional Magistrate had the jurisdiction to direct a further inquiry to be made by the Tahsildar-Magistrate. He has urged that the Tahsildar-Magistrate reported that there was apprehension of breach of peace. As such the Magistrate concerned was competent to revive or to recall his earlier order. I am not at all satisfied with this submission. Once it is held that the Sub-Divisional Magistrate has passed a valid order under Section 145. Criminal Procedure Code cancelling the proceedings and directing one of the parties to retain possession unless he is evicted therefrom in the due course of law, the proceedings come to an end and the Magistrate cannot assume jurisdiction to recall the earlier order. He becomes functus officio thereafter. If there is some fresh material which has arisen after the passing of the earlier order, it is open to a party to apply afresh to the Magistrate.

6. For the above reasons I am satisfied that this reference must be accepted. The order passed by the Magistrate 1st Class Jaunpur D/- 5.7.1971 is quashed and all the orders passed and proceedings taken by the said Magistrate subsequent to the order dated 17th October 1970 are also quashed.


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