Assad Ganai vs State and others

(1) This rule is directed against an order dated 2891972 of Shree Lakhpat Rai. Tehsildar, Executive Magistrate 1st Class Pahalgham, the relevant

portion whereof is in these words :

Perused the file and considered the statements of the witnesses. The evidence adduced by the applicant lends support to his application. The

witnesses have unanimously stated that the applicant apprehends imminent breach of peace from the nonapplicants because the nonapplicants pick

up quarrels with him every time which shows that there is apprehension of imminent breach of peace on spot on the part of the nonapplicants.

Accordingly it is necessary that action should be taken against the nonapplicants under section 117 Cr. PC I, therefore, direct that the

nonapplicants shall furnish personal bonds in a sum of Rs. 500/. each with surety for a like amount undertaking that for a period of one year they

will not commit any act which might occasion breach of peace on ;he spot. Since the nonapplicants ate not present, a notice shall be issued to them

in this behalf. The file will come up on 28101972. Announced.

(2) The order purports to be a final order made under section 118 Cr. PC and yet it is described as an order made under section 117 Cr. PC

which provides for interim security for keeping peace until the conclusion of the enquiry. This state of the order lends itself to the inference that the

trial Magistrate is either totally unaware of the relevant provisions of law or that he has dealt with the matter in a lighthearted manner or that the

order is the produce of efforts of some extraneous agency which may be his clerk in whose hand the order is written. Whatever the case, the trial

Magistrate has acted in a most irresponsible manner least realising that his action had serious repercussions on the liberty of the nonapplicants. A

by product of his irresponsibility is that he has allowed three prosecution witnesses namely Sana Bhat, Prithvi Nath and Khalil Bhat to make a joint

statement. The statement too appears to be in the hand of the clerk which might suggest that the trial Magistrate had allowed the case to be dealt

by the clerk at his own level There can be no other reason for this novel procedure unknown co criminal law.

(3) Coming to the merits of the case, I cannot help observing that not only the order but the entire proceedings is untenable. The dispute in this

case concerned a walnut tree. The applicant's case was that the tree belonged to him and he was entitled to remove the fruit which, he said, the l

nonapplicants did not permit. The case of the nonapplicant on the other hand was that they were the real owners with their title supported by a

decree of a civil court and as such they and not the applicant, were entitled to remove the fruit of the tree. In this state of the matter, it was hardly

fair to proceed against one party and thereby give the other party an unfair advantage over him. The proper course for the Magistrate to follow

was to proceed against both parties and bind down the party who was proved not to hive any title in the walnut tree. In any case, having decided

to proceed against the nonapplicants, alone, the trial Magistrate should have made an effort to ascertain the right of the parties in the walnut tree

with a view to deciding on which side the right lay. Without having come to a decision that the title was on the side of the applicant and the

nonapplicants unjustifiably obstructed him in the exercise of his rights to remove the fruits, the trial Magistrate could not justifiably pass an order

binding over the nonapplicants to keep peace and maintain good behaviour. Clearly there is nothing in the order to show that any such thing was

done by him. The trial Magistrate perhaps felt that it was not necessary for him to discuss evidence much less to determine its admissibility. Apart

from the joint statement of three witnesses referred to earlier there are some more statement of witnesses on record which are inadmissible in

evidence because no opportunity was given to the nonapplicants to crossexamine these witnesses. The learned Magistrate has, however, felt

unconcerned about it. The nonapplicants were unrepresented and as such the responsibility lay heavy on him to examine the case with care but he

has miserably failed in his duty. He has been content vaguely to state that, on evidence, there was danger of breach of peace on spot on the part of

the nonapplicants and it was necessary to bound them over An order based on such vague recitals borrowed from the words of the section is not

sustainable. In these circumstances I am of the opinion that the proceedings and the order of the trial Magistrate based thereon are equally vitiated

by improprieties and illegalities which have resulted in miscarriage of justice.

(4) In the result I set aside the order passed by the trial Magistrate and also quash the proceedings.

(5) Before parting with this easel cannot help observing that the trial Magistrate, Mr. Lakhpat Raj, does not deserve the office of the Tehsildar that

he holds much less the Magisterial powers be is invested with. The exercise of Magisterial powers by him particularly poses a serious threat to the

liberties of the people and the sooner these are withdrawn, the better it would be. A copy of this judgment shall be forwarded to the Law

Secretary for necessary action.