Jayashree Tiwari - (1.) THE present revision has been directed against order dated 27.11.2006, passed by Additional Sessions Judge Court No. 8, Etah in Criminal Revision No. 168 of 2005, Virendra Kumar v. Omendra Pal Singh in which order dated 9.2.2005 passed under Section 146(1), Cr. P.C. has been set aside.
(2.) BRIEF facts of the case are that the Sub-Divisional Magistrate concerned has passed an order in respect of the land belonging to Gaon Sabha which was having crop of wheat and mustard on the said land which had been sown by respondent Yogesh etc. Learned S.D.M., Jalesar has mentioned in his order that the respondents have illegally sown the crop of mustard and wheat on the land which belonged to Gaon Sabha in the revenue record as a result of which the damage is being caused to Gaon Sabha, Then application has been moved by Yogesh before S.D.M. that crop may be given in supurdagi of Commissioner and legal action be taken against the guilty person. The report from Tehsildar and Lekhakar was obtained in which they pointed out that the crop of wheat and mustard was in possession of respondents and upon this report the S.D.M. held that he has become satisfied that action be taken against the respondent and directed that the parties to submit documentary and oral evidence with regard to crop. After this order under Section 146, Cr. P.C. learned S.D.M. on hearing the parties has held that the respondents are illegally possessing the crop standing at Gata No. 1736/0.525 hectare. In such situation it has become essential to attach the land and crop standing thereon and thereafter he directed that crop and land be attached and be given in custody of some respectable person and directed the Tehsildar to comply with the direction and submit his report as such. Upon this order the revision was filed before the learned Additional Sessions Judge, Etah, the Additional Sessions Judge, Etah in his order quashed the order passed by the learned S.D.M. and held that since there was no emergent, apprehension of breach of peace, as revisionist was in possession, his wheat and mustard crop was standing on the land which was allegedly belonged to Gaon Sabha. Section 145 (1), Cr. P.C. should not have been drawn, Section 145(1), Cr. P.C. lays down as below : "145. Procedure where dispute concerning land or water is likely to cause breach of peace.--(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." The crux of the case is that discretion for exercise of power lies in the S.D.M. relating to any dispute which may cause breach of peace but in the present case the informant Yogendra Kumar has not alleged any possibility of any dispute which may cause breach of peace nor any finding has been recorded by the learned S.D.M. in this regard that there exists dispute which may cause breach of peace. In absence of this possibility the action taken by the S.D.M. appears to be uncalled for and the findings recorded by the learned Additional Sessions Judge seems to be well in consonance with law. In the light of observations made above, it appears that revision has no force in it and is liable to be rejected.
(3.) THE revision is dismissed accordingly.;