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Raghunath and ors. Vs. Khindu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 20 of 1954
Judge
Reported in1955CriLJ265
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 145, 145(4) and 145(8)
AppellantRaghunath and ors.
RespondentKhindu
Appellant Advocate K.C. Pandit, Adv.
Respondent Advocate H.D. Kainthala, Adv.
DispositionRevision dismissed
Cases ReferredKunjikannan v. P. C. Uthayya
Excerpt:
.....was no preliminary order as required by section 145 and in absence of dispute likely to cause breach of peace entire proceedings were without jurisdiction - as per statement of complainant and testimony of pw's 1, 6 and 8 there was apprehension of breach of peace - further contention that magistrate's order directing petitioners to hand over certain maize or cash to respondent-k was not covered by any provision of law - bond was executed by petitioners and magistrate's order was based on said bond - as per section 145 (8) magistrate was empowered to make order for proper custody or sale of property which was subject-matter of dispute and was empowered to make such order for disposal of property as he thinks fit on completion of inquiry - no case made out for interference in revision..........their revision petition was rejected. hence, this revision petition to this court.2. after hearing learned counsel for the petitioners, i admitted this petition on the 10th of june last on the following two points: (a) the order of the magistrate was bad because there was no preliminary order as required by section 145, criminal p. c. (b) the magistrate's order directing the petitioners to hand over 30 maunds of maize, or, in the alternative, rs. 400/- in cash to the respondent, khindu, was not covered by any provision of law.3. i have heard learned counsel for the parties.4. as far as point (a) is concerned, learned counsel for the petitioners argued, vehemently, that there is no preliminary order as required by section 145, criminal p. c., and, in the absence of a dispute likely to.....
Judgment:
ORDER

Ramabhadran, J.C.

1. The respondent, Khindu, filed a petition under Section 145, Criminal P. C., against the present petitioners in the Court of the Magistrate first class, Theog, alleging that he and his uncles had been in possession of the disputed land and were forcibly dispossessed by the present petitioners between April and June 1952 (the petition, was filed on 23-6-1952). Khindu asked for action under Section 145, Criminal P. C. The Magistrate, after making an inquiry, came to the conclusion that Khindu was in possession in Jeth 2009 B. and had been forcibly dispossessed by the present petitioners. Accordingly, he directed that Khindube put back in possession of the land. He further directed that the petitioners should hand over 30 maunds of maize to Khindu, or in lieu thereof, Rs. 400/- in cash. Against this order, the petitioners went up in revision to the learned Sessions Judge of Mahasu, but their revision petition was rejected. Hence, this revision petition to this Court.

2. After hearing learned counsel for the petitioners, I admitted this petition on the 10th of June last on the following two points: (a) The order of the Magistrate was bad because there was no preliminary order as required by Section 145, Criminal P. C. (b) The Magistrate's order directing the petitioners to hand over 30 maunds of maize, or, in the alternative, Rs. 400/- in cash to the respondent, Khindu, was not covered by any provision of law.

3. I have heard learned counsel for the parties.

4. As far as point (a) is concerned, learned counsel for the petitioners argued, vehemently, that there is no preliminary order as required by Section 145, Criminal P. C., and, in the absence of a dispute likely to cause a breach of the peace, the entire proceedings were without jurisdiction. Mr. Pandit cited--'Dulla v. State', AIR 1953 All 341 (A), where it was held:

'Once it is found that there is no danger of a breach of the peace, the foundation for action under Section 145, Criminal P. C., disappears. The Magistrate has no jurisdiction to proceed further and must immediately stay his hand.'

He further argued that the Magistrate did not obtain a report from the police to support Khindu's version that there was apprehension of a breach of the peace. He contended that, at the most, it amounted to a case of ouster. Learned counsel for the respondent on the other hand drew my attention to the Magistrate's order in vernacular, dated 23-6-1952, wherefrom it would appear that, after recording the statement of the complainant, the Magistrate was satisfied that there was apprehension of a breach of the peace. In--'Nageshwar Singh v. State', AIR 1953 All 471 (B), it was held:

'The question whether there was sufficient material for the trial Court to come to the conclusion that there was danger of a breach of the peace is not for the Court at this stage to determine. It is for the Magistrate concerned to come to a conclusion on the material before him whether such a dispute exists. However scanty the material might be, the trial Court is the proper forum for the purpose of determining this fact.'

In addition to the statement of the complainant, the testimony of the P. Ws,. 1, 6 and 8 made out that there was apprehension of a breach of the peace. Consequently, this contention is of no avail.

5. Coming to (b), it appears from a perusal of the record that Khindu and Manu applied to the Magistrate requesting him to attach the standing crops, get them cut and store them with the 'lambardar'. On this, the Magistrate granted him the permission to cut the crop, provided that he deposited a sum of Rs. 450/- as security money. Before this order could be carried out, however, the crops were cut by the opposite party, namely, the present petitioners. This was brought to the notice of the Magistrate by Khindu on 9-10-1952 and, thereupon, another order was passed by the Magistrate directing the present petitioners to furnish security to the tune of Rs. 500/-. It is not disputed that, in compliance with this order, a bond was actually executed by the petitioners. The Magistrate's order directing the petitioners to hand over 30 maunds of maize to Khindu, or, in the alternative, Rs. 400/- in cash, is based upon the bond.

The learned Sessions Judge has rightly remarked that the estimate of the produce was not challenged by the parties and, therefore, no further inquiry was necessary by the Magistrate. Learned counsel for the petitioners contended that this order was not covered by any provision of the law. This is, however, not so. Under Section 145(8), Criminal P. C., the Magistrate was empowered to make an order for the proper custody or sale of the property, which was the subject-matter of the dispute. This sub-section further empowers the Magistrate to make such order for the disposal of the property as he thinks fit on the completion of the inquiry. As was pointed out in--'Nand Kishore Prasad v. Radha Kishun', AIR 1943 Pat 124 (C),

'Section 145(8) is quite independent of the pro-viso to Section 145(4). Section 145(8) is a special provision for cases where there is crop or other produce which is subject to speedy and natural decay. There may be cases in Which there is no attachment under the proviso to Section 145 (4) and yet some order of the Magistrate is necessary if there is any crop or other produce of the land which is subject to speedy and natural decay. Section 145(8) is primarily intended to provide for such cases. If the land with the crop is attached, the Magistrate has full power to deal with the crop apart from the provisions of Section 145(8).'

Therefore, this contention also fails.

6. Lastly, as regards the factum of possession, it was contended that the findings of the Courts below are erroneous. In this connection, I need only refer to--'Kunjikannan v. P. C. Uthayya', AIR 1954 Mad 72 (D), where it was held: 'Usually in proceedings under Sections 145 to 147, Criminal P. C. unless there is anything prima facie wrong in the procedure adopted by the trial Court the Sessions Judge is not expected to use his discretionary powers under Section 438 merely to revise a finding of fact based on evidence.'

7. The result is that no case is made out for interference in revision. I, accordingly, reject the revision petition. Stay granted by this Court on 10-6-54 is vacated.


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