BIPTA Vs. DWARKA AND OTHERS

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Basti recommending that orders passed on 7 -1 -1961 by Sri Kishori Lal, first class Magistrate of Basti, in a case under Section 145 Code of Criminal Procedure be set aside.

(2.) THE proceedings under Section 145 Code of Criminal Procedure started on 23rd November, 1960 with a report by the Station Officer of Bansi Police Station, and the preliminary order was passed on 28 -1 -1960. But only a month before this, on 26 -10 -1960, the Munsif of Bansi had given a clear decision regarding possession of the very land that was the subject of dispute in the case under Section 145. Mst. Bipta (the first party) had filed a suit against Dwarka, etc. (the second party) for a declaration that she was the Sirdar in possession of the said land, or in the alternative for possession of the land; and the order passed by the learned Munsif was: "the Plaintiff is declared to be in possession over the suit plots as a Sirdar." The position therefore was that on 26 -10 -1960 there was in existence the decision of a competent civil court regarding the actual possession of one of the parties in the disputed land; and the question is whether in such circumstances it was proper for the learned Magistrate to start proceedings under Section 145 Code of Criminal Procedure about the very same property less than a month after the aforesaid order.

(3.) AN attempt has been made to argue that the Magistrate was not bound to follow the civil court decision, because it was only one of the many pieces of the evidence that he had to consider before coming to a decision on the question of actual possession in the proceedings under Section 145, CrPC; and in this connection reliance has been placed on the remarks of Asthana, J. in Ram Eqbal Pandey v. Mahant Ram Nath Gir, 1956 AWR (HC) 469. That case, however, has little relevance for the decision of the question that arises in the present case. Here we are not concerned with the weight to be attached to the judgment of a civil or revenue court, considered as evidence in the course of proceedings under Section 145. What we have to see is whether those proceedings could be started at all, when a civil court had adjudicated on the question of possession less than a month before and there was no possibility of a change having occurred in the possession of the land in the short intervening period.