ANJA GOUD Vs. BAGA GOWD

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge, Sangareddy, under section 438, Criminal Procedure Code, for setting aside the order of the Sub-Divisional Magistrate, Sangareddy, passed under section 145 (6), Criminal Procedure Code, dated 27th February, 1963, declaring ' A' party to be in possession of certain lands and directing the other party from interfering with their possession.

(2.) The reference is based mainly on the ground that the Revenue Divisional Officer who is also the Sub-Divisional Magistrate at Sangareddy failed to follows the procedure prescribed under section 145 (1), Criminal Procedure Code viz., that he did not make a preliminary order as contemplated under that section. Briefly the facts which have given rise to this reference may be stated. ' A' party (respondent before the learned Sessions Judge) filed a petition under section 145, Criminal Procedure Code, on 27th December, 1962, before the Sub-Divisional Magistrate, alleging that he was the owner and in possession of S. No. 239 situate in Kolkur village since 1355 fasli and had personally cultivated the land. It was alleged that ' B ' party was trying to take forcible possession of the land and there was apprehension of serious breach of the peace. It was prayed that urgent orders be issued restraining the other side from interfering with his possession. The learned Magistrate on the same day, i.e., 27th December, 1962, made the following order : "Admit the case and call for the other party. Dated 27th December, 1962."

(3.) Thereupon notices were issued and the parties appeared and filed their written statements. The learned Magistrate after an enquiry in accordance with the provisions of the Criminal Procedure Code, came to the conclusion that ' A ' party was in possession of the disputed land and accordingly issued an order in its favour directing the ' B ' party to restrain from interfering with the possession of the ' A ' party. Aggrieved by this order, ' B ' party went in revision to the Sessions Court, Sangareddy. The learned Sessions Judge dealt with the preliminary objection viz., that the order made by the Magistrate under section 145 (1), of Criminal Procedure Code was bad and referred the case to this Court for setting aside the said order as in his opinion the learned Magistrate had no jurisdiction to entertain petition. It is no doubt true that while making the preliminary order the learned Magistrate did not follow the procedure laid down in section 145 (1), Criminal Procedure Code. It is provided therein that: