SIDHESWAR MOHARANA Vs. NARAYAN TRIPATHY

JUDGEMENT

(1.) THIS revision is directed against the final order of the Magistrate disposing of a proceeding under Section 145, Code of Criminal Procedure in conformity with the decision of the Civil Court.

(2.) MR . Das, the learned Counsel appearing for the opposite party at the outset urged that this revision against such an order is not maintainable in law. Mr. Patra, the learned Counsel for the Petitioner, on the other band, contends that this revision is maintainable as the entire proceeding is vitiated because The Magistrate, in his order of reference, illegally entered into a discussion of the affidavits and documents on record and recorded his findings thereon. A Magistrate is competent to attach the property and refer the matter under Section 146, Code of Criminal Procedure when be is of opinion that none of the parties was in possession or is unable to decide as to which of them was in possession, of the subject of dispute. In order to make up his mind in the above direction be, at first, has to properly consider and assess the materials on record. In the statement which the Magistrate is required to draw up, in taking Action under Section 146(1), Code of Criminal Procedure, he has to indicate The reasons for his reference, which should conform with The above mentioned two grounds on which such a reference can be legally made. Necessarily, therefore, the Magistrate has to enter into some discussion of the materials on record in the above statement, and if he does not do so, his said statement can be caned in question. The above view gets support from the decision reported in Brahma Naik and 2 Ors. v. Ramkumar Agarwala, 1968 C.L.T. 181.

(3.) IN the decision reported in Kartik Pan and Anr. v. State, 1969 C.L.T. 936, cited by Mr. Patra, it has been held by Ray, J: