- (1.) K. D. Shahi, J. This revision has been filed by revisionist, Ram Autar Pan dey against the judgment and order dated 28th September, 1989 passed by IIIrd Additional City Magistrate, Varanasi in Criminal Case No. 39 of 1984, by which the learned Magistrate rejected the application of the revisionist under section 145 (5) Cr PC for dropping the proceedings under Sec tion 145, Cr PC.
(2.) THE proceedings in the case were initiated on the report of Station Officer, police station Chetganj, district Varanasi dated 6-11-1984 in which he had said that there is a dispute likely to cause breach of peace between the par ties in respect of possession of temple of Hanuman Jee situated in a hall con structed at plot No, 392. On this report of SO concerned, Sri A. K. Chaturvedi, the then City Magistrate, Varanasi passed a preliminary order on 7-11-1984. Being aggrieved, revisionist Ram Autar Pandey on behalf of first party filed an objection stating therein that the proceedings be dropped. THE second party alleged that a temple is being raised from 31-10-1984 and the building was constructed as Gurudwara for Sikh Community. THE learned Sub-Divisional Magistrate refused to drop the proceedings, therefore, this revision. I have heard Sri C. K. Parikh, learned Counsel appearing for the revisionist and Sri Ainar Saran for the respondents. The question is not that from when the temple of Hanuman Jee is there in existence. According to the second party, on 31-10-1984 Smt. Indira Gandhi was murdered and there was outrage against entire Sikh community and also against the Gurudwara and the hall was occupied by the first party and they in stalled an idol of Hanuman Jee and alleged that this is Hanuman temple. In this revisional Court it is not to be decided whether it was Hanuman temple or Gurudwara but it is only to be decided whether there was any dispute and apprehension of breach of peace. As such the first party says that this is a temple of Hanuman Jee and the other party says that this is Gurudwara, hence it is necessarily a dispute. As regards apprehension of breach of peace, it is alleged by the revisionist that there was no apprehension of breach of peace and the said temple of Hanuman Jee is old one. It was argued by the Counsel for respondents that they had taken over possession on the date of preliminary order, if it is so he will neces sarily say that there is no apprehension of breach of peace. Whether there was any apprehension of breach of peace is a mat ter of satisfaction of the learned Magistrate and the Magistrate has found 'that a dispute has cropped up, which may cause apprehension of breach of peace. The Court has also to see who was in possession before two months of the date of the preliminary order. Possession with regard to the said dispute, only on the date of preliminary order is not conclusive, the first party must be in possession also before two months. The preliminary order was passed by learned City Magistrate le. 7-11-1984. This fact i. e. possession is to be decided by the learned City Magistrate. Mere saying of the first party is not enough, he has to prove his case on evidence and for this further proceed ings in the case are necessary. I do not find any illegality or irregularity in the order passed by the learned City Magistrate and the revision has got no force and is to be dismissed.
(3.) THE revision is hereby dismissed. THE learned Magistrate is directed to proceed with the case afresh. It is further directed that the records be returned im mediately to the lower Court for further proceedings in the case. Revision dismissed. .;