JAI LAL Vs. STATE

JUDGEMENT

(1.) THIS application in revision arises out of proceedings under Section 145, Criminal P. C. An application under that section was made on behalf of the applicant Jai Lal against eight persons not including the opposite party Madhuri Saran. The Magistrate called for a police report and on a perusal of that report, on 21-9-1949, he passed the following order:

(2.) THE point urged on behalf of the applicant is that inasmuch as the preliminary order was passed on 17-3-1950, the Magistrate had no power under Section 145 to determine the question as to which party was in possession before the property was attached by the police. Section 145 requires that the Magistrate shall, after considering the evidence, decide whether any and which of the parties was at the date of the order mentioned in Sub-section (1), in possession of the subject of dispute. It is said that inasmuch as neither party was in possession of the property on the date when the preliminary order was passed namely, 17-3-1950, the Magistrate should, acting under Section 146 (1), have directed that the property was to remain attached until a competent court had determined the rights of the parties thereto, or the person entitled to possession thereof.

(3.) ON behalf of the opposite party Madhuri Saran, it is urged that the order passed by the learned magistrate on 21-9-1949, was in fact the preliminary order and that he was quite right in determining which party was in possession of the property on that date before it was attached by the police under the orders of the Magistrate. On behalf of the applicant, it is said that the preliminary order of the Magistrate should satisfy ell the conditions laid down in Section 145 (1)which requires that the order should be in writing, should state the grounds of his being satisfied that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof and require the parties concerned in such dispute to attend his court in person or by pleader within a time to be fixed by the Magistrate and to file written statements of their respective claims as respects the actual possession of the subject of dispute. On behalf of the opposite party it is said that although the order passed on the 21st September, 1949, does not call upon the parties concerned in the dispute to attend the Magistrate's Court within a certain time and to put in their written statements etc. , it should still be deemed to be an order under sub-section (1) of 145.