TEJ SINGH Vs. RAMLA
LAWS(RAJ)-1952-10-17
HIGH COURT OF RAJASTHAN
Decided on October 22,1952

TEJ SINGH Appellant
VERSUS
RAMLA Respondents


Referred Judgements :-

PREM KUMAR VS. BANARSI DAS [REFERRED TO]
DUDECHAND VS. MANAKMAL [REFERRED TO]
HARI CHARAN DE VS. SHERALI TALUKDAR [REFERRED TO]
SHIBNARAYAN DAS VS. SATYADEO PRASAD [REFERRED TO]



Cited Judgements :-

MAHANT BHAGWANDAS VS. SUGGAN [LAWS(RAJ)-1964-11-3] [REFERRED TO]
GIRWAR DAN VS. RAM PRASAD [LAWS(RAJ)-1984-1-12] [REFERRED TO]


JUDGEMENT

- (1.)THE facts giving rise to this application in revision are that on the 5th February, 1952, one Ramu Gujar resident of Chavsari, filed an application under sec. 145 Criminal Procedure Code in the court of the Sud-Divisional Magistrate, Udaipur in Jhunjhunu District. It was alleged that he was cultivating a field called Sattarwala for some generations, that Tej Singh and Rawat Singh had forcibly dispossessed him on the 31st January, 1952, that a dispute likely to cause a breach of the peace existed concerning the said land and that the court should, therefore, take legal proceedings and restore the possession of the field to him. THE application was sent to the police for investigation and report. THE applicant had made a similar report at the Police Station Gura on the 1st February, 1952. THE opposite party had made a counter report at the same police station on the 2nd February, 1952. On the 9th February, 1952, the Sub-Inspector, returned the application to the court with a report requesting it to proceed under sec. 145 Criminal Procedure Code. THE Magistrate, thereupon, passed a preliminary order under sec. 145, sub-sec. 1 and at the same time, he ordered the subject of dispute to be attached pending his decision. Tej Singh and Rawat Singh filed an application in revision against the said order in the court of the District Magistrate, Jhunjhunu, but they were unsuccessful and therefore, they have presented a revision application in this Court.
(2.)THIS case had come for hearing before a single bench, but it was referred to a division bench and therefore this has come before us.
The main argument advanced by the applicant's learned advocate before us is that the complainant Ramu had himself admitted in his application in the Magistrate's court that the applicants were in possession of the field, that there was no material whatsoever, before the Magistrate to infer about the existence of the state of emergency, that he has exercised his discretion wrongly and therefore, his order to this extent should be set aside.

The second proviso to sub-sec. (iv) of sec. 145 Criminal Procedure Code which empowers the Magistrate to attach the subject of dispute pending his decision runs as follows: - "provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. " It is clear from the wordings of the section that it is for the Magistrate to consider, whether the case is one of the emergency and if he thinks that it is so, then he may at any time attach the subject of dispute pending his decision under the section. The question before us is whether it is the Magistrate's absolute discretion to decide, whether the case is one of emergency or whether this court can interfere in revision in the matter. It may be observed that wherever the law gives a discretion to an authority it is always understood that the authority should exercise the discretion judicially and not arbitrarily. It there is absolutely no material before the Magistrate to show the existence of an emergency, it cannot be said that the law gives him absolute power to interfere with others' possession arid proceed to attach the property in dispute. In such cases, the revisional court whose powers are very wide, would be quite justified in interfering with the Magistrate's order and correcting it, but if there is some material before the Magistrate, and if on the basis of that material, he has come to the decision about the existence of the state of emergency then the law gives him very wide discretion and it would not be proper for a revisional court to interfere only because another court can arrive at a different finding on the same material. The applicant's learned advocate has referred to the cases of Hari Charan De vs. Sherali Taluk-dar (1) (A. I. R. 1932 Calcutta, p. 60.) and Devichand vs. Manakmal (2) (R. L. W. 1921, p. 129. ). It is contended on their basis that the Magistrate's order in this case was illegal. It may be pointed out that the first: case was referred to in the second case and it was held by Nawal Kishore, J. that: - "orders under sec. 145 are not to be passed when the applicant fears that a breach of the peace will occur a considerable time ahead There must be a present fear. " So far as the principle laid down in the case stated above is concerned, we quite agree with it, but its application depends on the circumstances of the individual case. In the present case, it cannot be said with justification that the Magistrate had proceeded to pass his orders simply because of an apprehension of a breach of the peace in the distant future. Instead of taking immediate action on the complainant's application, he first sent it for investigation to the Sub-Inspector Police. The Sub-Inspector had himself received reports from both the parties about the likelihood of a breach of the peace and he reported back saying that both the parties wanted to keep their possession over the disputed land, that both of them also claimed that the wood, fodder and other material lying there belonged to each one of them, that a quarrel between the parties about the animosity had increased to a great extent. The Magistrate did not proceed on this mere report, but he called the Sub-Inspector Bansi Lal and examined him in the court on oath. The witnesses not only corroborated his report, but it was further exhorted by him that unless the disputed property is attached, there was a definite apprehension of a breach of the peace. It was on this material that the Magistrate considered that, that was a case of emergency and he proceeded to pass an order of attachment.

It is vehemently contested by the applicant's learned advocate that when the complainant himself had admitted that the opposite party that is, the applicant was in possession of the property, the Magistrate ought not to have attached the property and dispossessed him. It is true that ordinarily the Magistrate should not dispossess the party in possession of the property, but no hard and fast rule can be laid down as to when it should proceed to attach the property. The Magistrate need not attach the property simply because the complainant alleges that a dispute is likely to arise or that the opposite party has dispossessed him, but if the Magistrate is satisfied on the material before him that a dispute involving a breach of the peace is likely to arise and there is a state of emergency, then there is no reason for him not to exercise the discretion vested in him. In the present case, it cannot be said that there was no material before the Magistrate. In the case of Prem Kumar and others vs. Banarsi Das (1) (A. I. R. 1933 Lahore, p. 409.) it was held that the question whether there was a state of emergency or not is a matter within the trial court's discretion and its action in ordering attachment for maintenance of peace should not be lightly-interfered with in revision. In the case of Shibnarayan Das and others vs. Satyadeo Prasad and another (2) (A. I. R. 1943 Patna p. 44.), it was observed that when there is some material on the record, it is entirely for the Magistrate to decide whether that material is sufficient or not and the High Court in revision cannot go into the sufficiency or otherwise of that material.

We are also of the view that where there is material before the Magistrate, it is for him to decide about its sufficiency or otherwise and to judge about the existence of emergency for an order of attachment pending his deicision.

We do not, therefore, consider it proper to interfere in this matter and the revision is hereby dismissed. .



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