HARDEVA Vs. STATE

JUDGEMENT

(1.) This is a reference by the Additional Sessions Judge against an order passed by a Magistrate of Saharanpur.

(2.) It appears that one Hardeo for himself and for his brother filed an application on 10-4-1956 against Smt. Lalli, Sukhbir. Ranbir and Balbir opposite parties alleging that he and his brothers were the sirdars of the plots and were in actual possession of it and they had been cultivating the sir for the last ten years. The opposite parties without any right wanted to dispossess them illegally and with force and they had harvested the crop. Hence an application was filed under Section 145, Cr. P. C. as there was danger of breach of the peace. A report was called for from the station officer and the evidence of both the parties was recorded. After going through the evidence the Magistrate came to the conclusion that it was not possible for him to come to any conclusion as to which of the parties was in possession within two months of the date of dispossession or at the time of attachment. He, therefore, directed the parties to go to the Civil Court, and consigned the record to the record room. This order was passed on 26-12-1956 and was passed apparently under Section 146, Cr. P. C. as it stood before the amendment (upto 26-12-1956 the section had not been amended) and the record was consigned to the record room. Under the amended section the Magistrate should have drawn up a statement of the facts of the case and forwarded the record and the proceedings to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject-matter of the dispute at the date of the order as explained in Sub-section (4), Section 145, Cr. P. C., and he was to direct the parties to appear before the Civil Court on a date to be fixed by it.

(3.) Since the Magistrate had not acted in accordance with Section 146, Cr. P. C. an application was made by the applicant drawing the attention of the learned Magistrate to that section and pointing out that he should have referred the case with a statement of the case under the amended Section 146. The learned Magistrate withdrew that order and thereafter amended his order and directed that the case should be sent to the Civil Court with a statement of the case. Against this order an application in revision was filed by the opposite party. The learned Sessions Judge was of opinion that once that order had been passed by the Magistrate ordering the record to be consigned to the record room he had become functus officio. He had no jurisdiction to amend his order.