HADU KHAN Vs. MAHADEV DAS

JUDGEMENT

(1.) THIS is a petition by the members of the second party in a proceeding under section 145, Cr. P. C. to quash the order dated 28-3-66 passed by Sri K. M. Ram, magistrate, 1st Class, Athagarh, declaring the possession of the first party in respect of 50. 99 acres of Bhogra lands in village Kotapala.

(2.) ONE Dasarathi was the Sarbarakar in respect of these Bhogra lands which are the subject-matter of the dispute in the 145 proceeding. In the year 1955, these lands were kept under the direct management of the State for some time and then another Sarbarakar was vested with the responsibility of management of these lands. According to the petitioners, they were the Bhag tenants under the said dasarathi and were paying rent to him during his lifetime. After his death during the period of State management thery were paying rent to the Sarbara-kar in de facto management. The first party was appointed Sarabarakar in respect of the lands in dispute on 24-2-65 and took delivery of possession on 21-3-65. At the commencement of the next agricultural season conflict between the parties started and case under Sections 143 and 447, I. P. C. , was instituted by the first party against the members of the second party, on the allegation that they trespassed upon the land in dispute in which the petitioners were ultimately acquitted. Thereafter on 20-6-65, the police submitted a report for initiating proceedings under Section 144, Cr. P. C. against the petitioners and accordingly the Magistrate issued a prohibitory order under Section 144 on 28-6-65 restraining the petitioners from coming over the land. The case under Section 144 was registered as Misc. Case No. 15 of 1965.

(3.) WHILE that case was proceeding, the Magistrate by his order dated 20-8-65 on a motion by the advocate for the first party converted the proceeding into one under section 145, directing issue of notices under the said section. The date fixed for appearance of the parties and for filing of their written statements was 18-9-65. The material portion of his order is stated below :--". . . . . and there is every justification to convert this to a proceeding under Sec. 145, Cr. P. C. Issue notice under Section 145, Cr. P. C. fixed for 18-9-65". No notice, however, was issued in pursuance of this order and nothing further seems to have been done in accordance with the requirements of Section 145, Cr. P. C. Another fact to be noted in this connection is that on the date of conversion of the proceeding under Section 144, Criminal P. C. into one under Section 145, criminal P. C. , only one member of the second party was present in person, viz. , one Abuul Gaffar and no other member of the second party was present either in person or through counsel. So they had no knowledge of this conver sion of the proceeding.