MANIKAM REDDY AND OTHERS Vs. YAMANI AND OTHERS

JUDGEMENT

(1.) This is a reference by the learned Chief City Magistrate-cum-Additional Sessions Judge, Hyderabad recommending that orders of the learned Munsif Magistrate, Hyderabad West, dated 17-10-1963 be set aside and that the Munsif Magistrate be directed to proceed with the enquiry pending before him in M. C. No. 24 of 1963 after issuing preliminary order as contemplated under Section 145(1) Criminal Procedure Code.

(2.) The relevant facts are as follows : Amar Jabari and another (hereafter referred to as party No. 1) filed a petition disclosing material contemplated under Section 145 Criminal Procedure Code before the competent Executive Magistrate (hereafter referred to for convenience as the Revenue Divisional Officer). He called for report from the Police and passed an order dated 14-10-1958 for attachment. Subsequently, parties produced material before him and he passed a final order on 11-12-1958 declaring the first party to be in possession of certain properties, the second party who were respondents in the petition under Section 145 Criminal Procedure Code to be in possession of certain other properties and some third parties, who were not parties to the petition, to be in possession of some properties. He ordered delivery of the properties and accordingly, delivery was effected on 18-12-1958. The first party felt aggrieved with this order and filed Crl. R. P. No. 29 of 1959 before the learned Additional Sessions Judge, Hyderabad. The latter made a reference to this Court saying that the final order of the Revenue Divisional Officer had to be set aside because of various defects; one of them was that there was no preliminary order passed as contemplated under Section 145 Criminal Procedure Code. This Court accepted the reference in Crl. R. C. No. 287 of 1959 and passed order dated 13-12-1960 as follows :

(3.) But the second party noticed this defect and filed M.P. No. 30 of 1963 before the learned Munsif Magistrate praying for passing of A preliminary order. The learned Munsif Magistrate rejected that petition by his order dated 17-10-1963 in which he observed as follows:-