Mohd. Hamid Huisain, J. - (1.) THE reference arises out of proceedings Under Section 145 Code of criminal Procedure. The learned Sessions Judge has recommended for the setting aside of the impugned order of the magistrate dt. 15 -5 -1971.
(2.) PUTTU Lal by an application dt. 17 -3 -1970 applied, to the SDM Jalalabad, to initiate proceedings against Brij Lal and others Under Section 145 Code of Criminal Procedure in respect of certain agricultural plots. The magistrate after obtaining the police report passed an order on 1 -4 -1970 Under Sub -section (1) of Section 145 Code of Criminal Procedure. The contesting parties filed their written statements and affidavits in support of their respective claims. Brij Lal, Gulzari and Sanwal and some others filed joint written statement. In para 6 of their written statement it was asserted that there existed no apprehension of breach of peace. Affidavit was filed by Brij Lal and in paras 6 and 9 of the said affidavit it was again asserted that there existed no apprehension of breach of peace. The magistrate gave no importance to the assertion of the opposite parties with regard to the nonexistence of the apprehension of breach of peace and by his order dt. 6 -1 -1971 referred the issue of possession for a finding to the civil court. The Munsif by his order dt. 19 -4 -71 held Puttu Lal to be in possession over the disputed land. On receipt of the finding from the Munsif regarding possession, the magistrate Under Section 146 Code of Criminal Procedure in conformity with the decision of the civil court passed the impugned order on 15 -5 -1971 releasing the disputed plots and the crops standing thereon in favour of Puttu Lal and forbidding Brij Lal and others from interfering with the peaceful possession of Puttu Lal till he was evicted by an order of a competent court.
(3.) AGGRIEVED by the aforesaid order Brij Lal and the two others went up in revision. The main ground was that the magistrate without going into the question of the existence of apprehension of breach of peace and recording a finding thereon, could not proceed to consider the question of possession between the contesting parties and the order of the Magistrate incorporating the finding of the Munsif is illegal. This contention of the learned Counsel found favour with the learned Sessions Judge who has recommended for the setting aside of the impugned order.;