-:(1):- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.: 1951 OF 2002 Sukhdeo Sandu Gadwe, Age: 52 years, Occu.: Agriculture, R/o KInhola, Taluka: Badnapur, District: Jalna. ... PETITIONER. VERSUS 1. Ashok Vinayak Gadwe, Age: 40 years, Occu.: Agri., R/o Kinhola, Taluka Badnapur, District: Jalna. 2. State of Maharashtra. (Copy to be served on the Public Prosecutor, High Court, Bench at Aurangabad). ... RESPONDENTS. *** Mr. Satyajeet S. Bora, Advocate i/b Mr. S.C. Bora, Advocate for the Applicant. Mrs. B. R. Khekale, A.P.P. for the Respondent/ State. Mr. Joydeep Chatterji, Advocate for Respondent No.1. *** CORAM: K. U. CHANDIWAL, J. DATED: 13th AUGUST, 2009. ORAL JUDGMENT: 1. Heard learned counsel extensively. The order passed by the learned Sub Divisional Magistrate, Jalna dated 27th July, 2001 was assailed by present applicant before the learned Additional Sessions Judge, Jalna in Criminal Revision No.60 of 2002 and who dismissed the revision, confirming the order of learned Sub Divisional Magistrate dated 27th July, 2001. It is these two orders, which are challenged by the aggrieved applicant Sukhdeo. 2. The facts in nutshell, according to the applicant are: by virtue of his long standing possession, at his application to the competent authorities, by order dated 25th October, 1983 orders in terms of section 51 of the Maharashtra Land Revenue Code bestowing possession with ownership rights to the extent of 4 Acres of land from land Gat No.77 -:(2):- were effected. Mutation entry No.497 was also taken. The applicant herein Sukhdeo was harassed by Sandu and ten persons. Consequently, he initiated proceedings in R.C.S. No.246 of 1988, which was decreed on 9th September, 1992 recorded by the Joint Civil Judge, Senior Division, Jalna. The appeal preferred by Sandu was dismissed by Appellate Court on 17th July, 1998. 3. Applicant Sukhdeo felt aggrieved by the Government action, he initiated civil proceedings in R.C.S. No.201 of 1998 against Government before the learned Civil Judge, Senior Division, Jalna and by order dated 29th February, 2000 the suit came to be decreed. His possession was observed by the learned Judge to be a legal possession. The State was restrained from interfering and obstructing Sukhadeo's possession on 4 Acres of land. 4. The Respondent Ashok moved the Collector, Jalna on 29th April, 1998 making allegation against the present Petitioner to be a person already possessing lands adjacent to the suit property and his mutation has been terminated by orders dated 10th February, 1998 and consequently said Ashok, the Respondent herein, urged the Collector to take action in the matter as the twelve landless persons are deliberately kept away from enjoying fruits of the agricultural field. He threatened, with effect from 7th May, 1993 they were contemplating for fast unto death. The Government would face the consequences for casualties, if any. 6. The fact remains, there is already a decree in favour of the present applicant Sukhdeo against Government in R.C.S. No.201 of 1998. Though it is pointed that the said order is subject to challenge in appeal by the Government. That does not mean loss of possession by Sudhdeo. The question before this Court is, as to who was in immediate possession on the date of the learned Sub Divisional Magistrate, Jalna initiating the proceeding by virtue of section 145 of the Criminal Procedure Code. The order dated 25th October, 1983 in terms of section 51 of Maharashtra Revenue Code by Government was due to earlier possession of Sukhdeo all alone which the Government approved and confirmed through mutation entry. Sukhdeo was a encroacher on land and since he belonged to Scheduled Caste, the fine under section 50 (2) of Code was imposed and collected. 7. It cannot be said that there was any controversy as to who could be in possession at the material time. The record was as clean as it could be. Even otherwise, the application of Ashok dated 29th April, 1998 to the learned Sub Divisional Magistrate, if read in its proper perspective, illustrate, in so many words he has accepted that the land -:(3):- was in possession of Sukhdev, however Ashok has urged that the Government should withdraw the land from Sukhadev. The controversy created by Ashok does not mean, there was dispute over possession of the land. The jurisdiction under section 145 Cr.P.C. operates to prevent breach of peace and for that purpose to provide a speedy remedy to ascertain who was in possession and to maintain the same until their rights are determined by a competent Court. The learned Magistrate was under obligation to satisfy himself that there was a dispute concerning agricultural property and that such dispute is likely to cause breach of peace. The material referred above was indeed sufficient for learned Magistrate to accept Sukhedeo's possession. There was no case of wrongful possession or wrongful dispossession. 8. The essence and basis of the jurisdiction depends upon there being a dispute likely to create a breach of peace. The proceedings are indicative of a short cut method to remove Sukhadev from possession notwithstanding he is in possession of land based on valid orders. Consequently, there cannot be any breach of peace at the behest of the present applicant Sukhdeo. The orders of learned Sub Divisional Magistrate and that of the Revisional Court are contrary to the record. Consequently, both the orders are set aside and quashed. 9. Criminal application is allowed accordingly. Rule made absolute. [K. U. CHANDIWAL, J.] Dated:13.08.2009. ans/1951