ALTAB ALI Vs. JAGADISH CHANDRA ADHIKARI

JUDGEMENT

(1.) THE learned Sessions Judge has made this reference with a recommendation that the order passed by the first class Magistrate, Udaipur Shri S. C. Das, on 12 -9 -58 declaring the' possession of the first party Jagadish Chandra Adhikari in proceedings under Section 145 Cri V. C, should be set aside. The said Adhikari filed a petition before the Magistrate on 14 -1 -1957 stating that he was in possession of 4 kanis of land in Jote No. 65 of Mouja Dhwajnagar on allotment by the Relief and Rehabilitation Department, that he was dispossessed on 9 -9 -1366 T. E. corresponding to 24 -12 -1956 by the second party who were very turbulent and that their conduct was likely to lead to a breach of the peace. The Magistrate took the petition on file on the same date and called for a police report and posted the case to 24 -1 -1957. On the latter date as no police report was received ho adjourned it further to 12 -2 -57. No police report was received on the latter date also and so the Magistrate directed the issue of a reminder and posted the case to 21 -3 -57. No report was received again by 21 -3 -57 and a fresh reminder was issued and the case was adjourned to 9 -4 -57. Again on 9 -4 -57 it was found that in spite of the two reminders no report was received from the Police. So the matter was adjourned to 27 -4 -57. The police report was actually received in Court on 10 -4 -57. It was stated therein that on enquiry it appeared that there was a dispute relating to the land and that breach of the peace was apprehended and that the land in question may be kept under attachment. On 27 -4 -57 the Magistrate took up the matter and passed the order that he has received the police report stating that there was apprehension of breach of the peace and that proceedings will be drawn up under Section 145 Cri, P.C. and that the land would be kept under attachment.

(2.) THEN notices were issued to both the parties calling for their written statements. The second party took considerable time to file their written statement and at one stage in spite of a last chance being given for filing their written statement on 2 -9 -57 upto 16 -9 -57 the second party -was absent and the Court decided to proceed ex parte. At that stage the first party filed a petition that the second party had entered into the attached land and called for an enquiry which was posted to 12 -7(9) -1957. On that date the second party turned up and submitted their written statement. Then the case underwent two adjournments. Again on 20 -11 -57 the second party was absent. But the matter was adjourned to 11 -12 -57 and on which date the second party appeared and prayed for issue of summons to witnesses. It would appear that neither party was called upon to file or filed affidavits of persons in support of their respective possession. The Magistrate proceeded to dispose of the case on the oral evidence of witnesses summoned by both parties. It is seen that on every adjourned date the first party was present with his witnesses. Ultimately the witnesses on both sides were examined and examination of the witnesses was concluded on 1 -7 -58. Thereafter on 26 -7 -58 the securely party was again absent. But as the Court had no time it was posted for arguments to 22 -8 -58 when arguments were heard and the order of the Magistrate was made on 12 -9:58 finding that the first party Jagadish Chandra Adhikari was entitled to possession of the disputed land and forbidding interference by other persons in the disputed land and directing that the first party shall be restored to the possession of the land. Then the second party filed criminal motion before the Sessions Judge and the Sessions Judge has made the reference to this Court that the order should be set aside,

(3.) SECONDLY , it. was pointed out that under the amended Section 145 Cri. P.C. which came into force on 1 -1 -56, the Magistrate was to dispose of the matter on a perusal of the statements, documents and affidavits, if any, put in by the parties, that in the present case no affidavits at all were field by either party, that it was wrong on the part of the Magistrate to have examined witnesses on either side whose affidavits have not been produced, that under the first proviso of Sub -section (4) of Section 145 the Magistrate has the power to summon and examine only persons whose affidavits have been put in and that too as to the facts contained therein and that the procedure of this Magistrate was absolutely unwarranted.