IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No. 95/2003 Sudhir Mani …….Revisionist Versus State of Uttaranchal & Another ……Respondents Mr. Lokendra Dobhal, Advocate, for the revisionist. Mr. P.S. Bohra, Brief Holder, for the State. Mr. G.S. Negi, Advocate, for the respondent no. 2. 29th July, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this revision, the judgment and order passed by the Additional Sessions Judge/FTC, Pauri Garhwal dated 26.6.2003 has been challenged, which was delivered in Criminal Revision no. 6/1998. In that revision, the learned Additional Sessions Judge, while setting aside the order of the Pargana Magistrate, Barahsyun, District Pauri Garhwal, directed the Magistrate to pass an order for delivering the possession of the disputed land to Surendra Mani/respondent no. 2. 2. The background facts in this litigation between the parties are that the revisionist Sudhir Mani and respondent no. 2 Surendra Mani are close relatives and are from the same village. They are the descendents of the same ancestors. Revisionist and two others i.e. Birbal Mani and Amarchandi and respondent no. 2 are in possession of the land in dispute situated at Gata No. 3554. On 31.10.1991, Surendra Mani moved an application to the revenue authorities regarding forcible adverse possession, which was being made allegedly by Sudhir Mani while raising his construction. The notice was issued under Section 145 CrPC and the portion of the disputed land was attached. After enquiry, the Sub Divisional 2 Magistrate decided the portion of the land in dispute to be in possession of Sudhir Mani, just before the passing of the preliminary order on 20.11.1991. This was based on the appreciation of the evidence adduced by both the parties before the Magistrate. 3. The finding of the Magistrate was challenged by the respondent no. 2 before the Additional Sessions Judge, who rebutted the finding of the SDM and directed him as stated above. Feeling aggrieved, the revisionist has preferred this revision. 4. Heard learned Counsel for the parties and perused the materials available on record. 5. Learned Counsel for the revisionist argued that the learned Additional Sessions Judge should not have appreciated the entire facts to make his view after reassessing the same elaborately. This view has also been reiterated by this Court while adjudicating the Criminal Revision No. 517/2001, Mahaveer V. State of U.P. on 20.7.2006, wherein it has been observed that the lower revisional court has ignored the settled principle of law that it had no jurisdiction to substitute its own view on a question of fact. In utter violation of the settled principle of law, the lower revisional court has substituted his own view after reassessment of the evidence, which was not permissible, in law, to him. The learned Counsel for the revisionist has also relied upon a precedent of Hon’ble Allahabad High Court in case of Kunwar Shiv Mahendra Kumar Singh v. State of U.P. reported in 1996 (33) ACC 201. In that case, proceedings under Section 145 were stayed for over 13 years on orders passed by the High Court. Meantime, proceedings under Section 107/116 CrPC were also initiated, in which parties were directed to furnish bonds. 3 When the matter came up for hearing after 13 years, then the Allahabad High Court opined that the proceedings under Section 145 CrPC are emergency proceedings. It was observed that it will not be proper to commence these proceedings now, which remain stayed for 13 years. 6. On the other hand, learned Counsel for the respondent no. 2 has relied upon the judgment of Hon’ble Apex Court in case of Rajpati v. Bacchan & Anr. reported in (1980) 4 SCC 116, wherein it was held that a finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final order. Once a preliminary order drawn up by the magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceeding unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub-section (5) of Section 145 of the Code of Criminal Procedure. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub-section (6) of Section 145. 7. It appears that the differences between parties regarding the possession over the part of the land is still subsisting. If the revisionist has completed his construction in violation of the status quo order of this Court, then he has done it to his own peril. However, this Court, in view of the settled principle of law, as stated above, is of the view that the dispute regarding the possession over the disputed land can still be decided by the SDM under Section 145 CrPC having regard to the observations made by the lower revisional court in its judgment dated 26.6.2003. 4 8. In the above circumstances, this revision is partly allowed. The operative portion of the impugned judgment of the Additional Sessions Judge dated 26.6.2003 is set aside, keeping intact the observations made in the body of the said judgment. SDM while considering the matter afresh, in addition to the evidence on record, shall also keep those observations in mind and shall determine the dispute. If deemed necessary, then parties shall also be permitted to lead additional evidence, if any. (Servesh Kumar Gupta, J.) 29.7.2011 Prabodh