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Salla Ram S/O Begar Ram Jat Khinvasar Vs. the State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Cr. Revision No. 370 of 1983
Judge
Reported in1984WLN(UC)278
AppellantSalla Ram S/O Begar Ram Jat Khinvasar
RespondentThe State of Rajasthan and anr.
DispositionPetition dismissed
Cases Referred and State of Orissa v. Makuta Sahu and Ors
Excerpt:
.....breach of peace is not enough for taking action under section 141(1) cr. pc and this is where the learned magistrate acted without jurisdiction in passing the order under section 146 cr. pc without finding any emergency in there circumstance the learned sessions judge was perfectly justified in, setting aside the order.;revision rejected - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described..........no. 2 in proceedings under section 145 cr. pc has tiled this revision against the order of the learned sessions judge, churu dated 7-11-83 by which he accepted the revision of chunaram, party no. 1 in these proceedings and set-aside the order of the learned sub-divisional officer, churu dated 6-9-83 appointing the thesildar as receiver on the land in dispute.2. i have heard the learned counsel for the parties and the learned p.p. and have gone through the record.3 i am of the opinion that the revision can be disposed of in short. the facts giving rise to this revision are that the proceedings under section 145 cr. pc in this case were initiated on 28-1-81 when the learned magistrate passed a preliminary order. it appears that an application under section 146 cr. pc, had already been.....
Judgment:

K.S. Lodha, J.

1. Salla Ram, party No. 2 in proceedings under Section 145 Cr. PC has tiled this revision against the order of the learned Sessions Judge, Churu dated 7-11-83 by which he accepted the revision of Chunaram, party No. 1 in these proceedings and set-aside the order of the learned Sub-Divisional Officer, Churu dated 6-9-83 appointing the Thesildar as Receiver on the land in dispute.

2. I have heard the learned Counsel for the parties and the learned P.P. and have gone through the record.

3 I am of the opinion that the revision can be disposed of in short. The facts giving rise to this revision are that the proceedings under Section 145 Cr. PC in this case were initiated on 28-1-81 when the learned Magistrate passed a preliminary order. It appears that an application under Section 146 Cr. PC, had already been filed and arguments on that application had been heard by the learned Magistrate on 24-8-81, however, no orders on that application were passed till 2-8-83 when the party No. 2 again moved the Court drawing its attention to the fact that the application under Section 146(1) remains un-disposed of After hearing the parties on this application the learned Magistrate passed the under under dispute on 6 9-83. His finding was that looking to the dispute between the parties regarding the land and the changing position of possession every time there appears to be danger to peace and on this he proceeded to attach the land in dispute and appoint the Tehsildar as its Receiver The armed Sessions Judge, however, found that there was absolutely no material before the learned Magistrate to come to the conclusion that there was any emergent danger and therefore, he had np jurisdiction to attach the land and appoint a Receiver. How, therefore, set-aside the order of the learned Magistrate.

4. The contention of the learned Counsel for the petitioner is that there was material before the learned Magistrate to satisfy him about the emergent danger of breach of peace and when after taking into consideration that material and properly discussing it, the learned Magistrate was satisfied that there was ground for appointing the Receiver, the learned Sessions Judge could net have interfered with that order in exercise of his revisional jurisdiction. In this connection he placed reliance upon R.N. Bhutani v. Miss Mani J. Desai and Ors 1968 SC 1443 and State of Orissa v. Makuta Sahu and Ors 1919 SC 663.

5. On the other hand, the learned Counsel for the non-petitioners submitted that the learned Sessions Juige was perfectly within his jurisdiction to set-aside the order of the learned Magistrate when he found that it was based on no material and, therefore, this Court should not interfere With the order of the learned Sessions Judge.

6. I have given my careful consideration to the rival contentions, It is true, as held by the authorities relied upon by the learned Counsel that sufficiency of the material for passing the order under Section 145 Cr. PC is not the matter of consideration before the revisional Court but when there is absolutely no material on which the order of the learned Magistrate could be based, the revisions) Court can always interfere with that order. The matter this case is under Section 146 Cr. PC and if the learned Magistrate has passed the order without taking into consideration the ingredient of that section, the learned Sessions Judge was perfectly justified in setting-aside of that order. The learned Magistrate has himself observed that the property may be attach, either when there is a case of emergency pr if he decided that none of the parties was in possession at the time of making of the order under Sub-section (1) of Section 145. However, while applying these principles the learned Magistrate failed to see whether there was any emergency at the suite the order was being 'passed. He also did not find that neither party was in possession. He referred to only an apprehension of breach of peace at the time the proceedings were initiated and then he referred to the changing position in, respect of possession. He, however, no where found that there was apase of emergency. A mere apprehension of breach of peace is not enough, for taking action under Section 146(1) Cr. PC and this is where the learned Magistrate acted without jurisdiction in passing the order under Section 146 Cr.PC without finding any emergency. In these circumstances, the learned Sessions Judge was perfectly justified in belting aside the order.

7. The order of the learned Sessions Judge, therefore, does not call for any interference and the revision is, therefore, rejected.


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