MAQSOOD KHAN Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Rae Bareli recommending that an order passed by Sri V. P. Sharma, S. D. M. , Rae Bareli under Section 145 of the Code of Criminal procedure should be set aside. It would appear that one Maqsood Khan made an application on 20-2-1952 under Section 145 of the Code of Criminal Procedure on the allegations that he was in possession of plots Nos. 6091, 1430, 1631, 1761,. 1438, 650, 1795, 332, 436 and 565 situate in tahsil Mahrajgang district Rae bareli, that he held a patta of these plots, that he had deposited the Bhumidhari dues in respect of the said plots and that the opposite parties were turbulent persons who had forcibly cut down the 'sarson' crop grown by the applicant. The opposite parties in this application were Mohamad raza Khan and 9 others. The applicant Maqsood Khan is the son of Ishaq Khan and the grandson of one Dildar Khan. Mohammad Raza Khan one of the opposite parties is a brother of Ishaq Khan who is another son of Dildar Khan. After the usual preliminary order was passed under Section 145, Sub-clause (1) of the Code of criminal Procedure, the Magistrate entered on the enquiry as to the possession of the property. He called for the written statements of the parties, recorded the evidence produced by both the parties and on 28-8-1953 he passed the final order in the case. This order runs as follows:

(2.) HAVING heard the learned counsel for the parties, I am of opinion that this reference must be accepted. A comparison of the above order with the Form No. 22 given in Schedule 5 of the Code of criminal Procedure shows that in this case the Magistrate has done nothing except copying out the stereotyped form prescribed in Schedule 5 for passing a declaratory order under Section 145 of the Code of Criminal Procedure. Section 145, sub-cl. 4 of the Code of Criminal Procedure lays down the procedure to be follow ed by the Magistrate, after passing the prelimi nary order. Section 145, sub-cl. 4 provides as follows:

(3.) ON behalf of the opposite parties Mohammad Baza Khan and others my attention has been invited to Section 555 of the Criminal P. C. which provides as follows: