RAM KHELAWAN BHAGWATI Vs. SUNDER NANKA

JUDGEMENT

(1.) THIS reference arises out of the proceedings under Sec tion 145 of the Code of Criminal Pro cedure. Ram Khelawan the petitioner, applied to the Magistrate for summoning the Lekhpal for filing an affidavit in that case. The Magistrate disallowed the prayer on the ground that under the ex isting law, there was no provision for summoning a witness for giving evidence in a case under Section 145 of the Cri. P. C. In the revision filed against that order, the Sessions Judge, Lucknow, did not agree with that view. So, he made a reference to the High Court recom mending that the order of the Magistrate be quashed and he be directed to decide the application of Ram Khelawan for summoning the Lekhpal on the merits. The reference came up for hearing before Brother Misra, J. He thought that the view expressed by Desai, J. (as he then was), in the case of Bhagwat Singh v. State, AIR 1959 All 763, that the Magis trate can summon only those persons for examination whose affidavits have been put in, needed reconsideration. So, he referred the matter to a Bench. In these circumstances, this reference has come up for hearing before us. We have heard Sri Chauhan, Counsel for the opposite parties. Nobody, however, appeared from the side of the applicant in spite of suf ficient service. Since the matter was of some importance, we also called upon the Government Advocate to address us.

(2.) IN AIR 1959 All 763 (Supra) Desai, J. interpreting the provisions of sub-sec tions (4) and (9) of Section 145 of the Criminal P. C. observed:

(3.) SECTION 145 is intended only to pro vide a speedy remedy for the prevention of breaches of peace arising out of dis putes relating to immoveable property by allowing one or either of the parties in possession. By Act No. 26 of 1955, certain important changes have been introduced. The main object of the amendments is quicker disposal of enquiries under this section. Sub-sections (1), (4) (5) and (6) of this section are complementary.Once an order has been passed under sub-sec tion (1), it is obligatory for a Magistrate to make the enquiry provided for in sub section (4) subject only to the obligation under sub-section (5) to determinate proceedings in the circumstances therein contemplated. The words of sub-sec tion (4) "the Magistrate shall then........."are mandatory. The word 'then' refers to the stage when in compliance with the order under sub-section (1) the parties have put in their written statements and attended the Court. Sub-section (5) is emphatic that the order under sub-sec tion (1) shall be final subject to the one exception that the Magistrate shall cancel the order and stay all further proceed ings if it is shown that no dispute likely to cause breach of the peace exists or has existed. On the completion of the enquiry under sub-section (4) a final order under sub-section (6) must follow it being obvious that the holding of the said en quiry is a condition precedent to the making of the order under sub-s. (6).