- (1.) PALOK Basu, J. Rama Singh has filed this application under Section 482, Cr. P. C. challenging the order of the S. D. M. , Chandauli, East Varanasi, dated 28-7-1981 purported to have been passed under Sections 145/146, Cr. P. C. relating to the disputed property.
(2.) SRI N. N. Singh, learned counsel for the applicant, SRI Manoj Prasad, learned counsel for the opposite party and the learned A. G. A. have been heard at length. The short controversy in the present petition is as to whether it was open to the Magistrate to initiate proceedings by his order dated 28-7-1981. The facts lie in a narrow compass. There is a mill which was put under attachment because of outstanding sales tax dues. The applicant and the contesting opposite parties Nos. 1 and 2 are claiming rights, respectively. The opposite party No. 1 says that the property is being looked after by him as a supurdar appointed by the Sales Tax Authorities after attachment. The applicant states that he is the purchaser from the erstwhile owner. This being the controversy, it appears that the dispute was taken to a civil court and some order may have been passed by that court and the parties were directed to maintain the status quo. The police submitted its report for proceedings under Section 145, Cr. P. C. The Magistrate had called the applicant as well as the opposite parties to appear before him and show their claims. Both the parties had appeared and filed their materials. On a critical examination of the materials the Magistrate had passed the earlier order of 16th July, 1981 refusing to initiate proceedings under Section i45, Cr. P,c. The report from the Police Station concerned was also there on the file but in spite of it the Magistrate did not pass a preliminary order. It may be stated that the Magistrate's order was perfectly in accord with the facts and law when he refused to initiate proceed ings under Sections 145/146, Cr. P. C. on the basis of that report of the Police particularly because the disputed property was reported to be under attachment with the Sales Tax Department and also that civil suit was pending. There fore, the accomplished fact admittedly remains that on 16-7-1981 there was no material on which it may have appeared to the magistrate that there was imminent apprehension of breach of the peace. It may be relevant to note that the applicant and the opposite parties felt fully satisfied with that order and did not judicially challenge the said order of the Magistrate refusing to initiate proceedings under Section 145, Cr. P. C. either by way of a revision or any other mode. Curiously enough, only a few days later, the opp. parties moved an application before the District Magistrate who directed the S. D. M. to proceed with the matter again and the S. D. M. in his turn called a report from the police and also directed the Naib-Tahsilder to enquire. It appears that the order to get parallel enquiry conducted by the Naib-Tahsildar was stayed by the A. D. M. (City ). The fresh report of the police in pursuance of the order of the S. D, M. was dated 28-7-1981. Its perusal indicates that it is almost a copy of earlier report and no fresh material was reported to the Magistrate except that it was pointed out in the second report that the S. D. M. has refused to take proceedings under Section 145, Cr. P. C. in pursuance of the earlier report. No incident whatsoever had happened; no marpit had taken place; no report was lodged and no damage was done and thus the legal and factual position as regards materials to indicate any apprehension of breach of the peace remained the same on 28th July, 1981 as it was on 16th July, 1981.
(3.) ONCE the same Magistrate had rejected the prayer of the police by a very reasoned order that there was no apprehension of breach of the peace and the parties should await the decree of a competent civil court where the matter is pending, there does not seem to be any justifiable reason on his part to change his view without any material change in the factual and legal basis. Consequently, the subsequent order dated 27-8-1981 was wholly unjusti fied on facts stated above. Therefore, this application succeeds and is allowed. The order dated 27-8-1981 is set aside and the proceedings flowing therefrom are also quashed. Application allowed. .;