STATE OF MYSORE Vs. MDJALAL AND

JUDGEMENT

(1.) This is a reference under Section 438 of the Criminal Procedure Code made by the learned District Magistrate of Gulbarga in the following circumstances:

(2.) On 12-8-1956 one Abdul Wahed on behalf of one Rasul Bi made a written complaint to the Yadgir police charging the respondents before me with having illegally broken into her house on 5-8-1956 by breaking the locks and with having removed certain properties kept therein. It was also complained that the accused continued in illegal occupation of the house. This information was registered by the police under Sections 457 and 380 of the Indian Penal Code. After investigation, however, they filed a charge sheet before the Munsiff-Magistrate of Yadgir only in respect on an offence under Section 457 I.P.C. This was on 21-9-1956. Thereafter the case underwent a series of adjournments as one or other of the parties was absent and one of the accused frequently reported illness. On 19-3-1957 the accused filed a written statement setting out various reasons why the prosecution was misconceived and praying that the case may be dismissed and the accused discharged. This statement discloses that in respect of the house there was pending civil litigation between the parties who are closely related to each other besides some other proceedings under Section 145 of the Criminal Procedure Code. Though this statement was filed, it appears from the order sheet that only the 1st accused was present and the 2nd accused had sent a telegram to the court stating that he had missed his train and praying for an adjournment. The adjournment was granted and after two such adjournments the Magistrate heard full arguments on 23-3-1957 -- Ultimately on 3-4-1957 he framed a charge against both the accused under Section 456 of the Indian Penal Code. Both of them pleaded not guilty to the charge and the Magistrate directed issue of summonses to P. Ws. 2 to 6.

(3.) Sometime thereafter there appears to have been a change of Magistrate at Yadgir. The new Magistrate ultimately came to pass an order on 29-7-1957, which is the subject-matter of this reference. In that order the learned Magistrate observes that his predecessor does not appear to have heard the parties regarding their application on 19-3-1957 to which I have already made a reference. He further observes: