RAM CHARAN AND ANOTHER Vs. STATE AND ANOTHER

JUDGEMENT

(1.) There is a short point involved in this Criminal Reference which arises out of proceedings u/S. 145 CrPC. Sita Ram, opposite party, had moved an application on 24.5.1968 alleging that the present applicant intended to take forcible possession of the plots and the crops whereas the plots had been in possession of Sita Ram since long and the crops had also been sown by him. After the usual police report the Magistrate passed a preliminary order on 8.4.1968 and the property was attached. The parties were given opportunity to file their written statement and tender evidence. After perusal of the entire material on record the Magistrate found that the opposite party Sita Ram was in possession of the plot of the land in dispute. He accordingly ordered the property to be released in his favour and restrained the applicants from interfering with his possession until evicted in due course of law. Harvested wheat crop was also delivered to Sita Ram.

(2.) Revision was preferred against the order of the learned Magistrate to the Sessions Judge who agreeing with the contention of the learned counsel for the applicant made this reference. The short point on which the reference is made is that there is nothing on the record to prove that the preliminary order had been served on the applicants. There is a mandatory provision contained in S. 145 sub S. (3) Crimial P.C. that a copy of the preliminary order must be served upon the person or persons against whom it is passed. The procedure for effecting service is also provided under the Code and sub S. (3) of S. 145 Crimial P.C. enjoins the affixation of the copy of the preliminary order to some conspicuous place at or near the subject of dispute. There is nothing on the record to indicate that the service of the copy of the preliminary order was effected on the applicant. There was thus clearly no compliance of the provisions of S. 145(3) of the Code. In my opinion this is not a curable irregularity and S. 145(3) Crimial P.C. cannot be availed of to mitigate the defect in the procedure followed by the Magistrate. Therefore, I am of the opinion that this non compliance of the procedure vitiated the entire proceedings as the preliminary order is a jurisdictional order and if there is non-compliance in the procedure prescribed by law all subsequent proceedings will be bad.

(3.) For these reasons I accept the reference and set aside the order dated 29 of 1968 passed by the Magistrate with regard to the property in dispute. Reference accepted.