JANGAL PRASAD Vs. RAMESAR PRASAD

JUDGEMENT

(1.) This is a reference made by the Additional Sessions Judge of Saran under Section 438 of the Code of Criminal Procedure. The short facts are these :

(2.) There was a report by the Sub-Inspector of Police, Ghuthni about an apprehension of a breach of the peace between Jangal Prasad, the petitioner before the Court below, and Ramesar Prasad, the opposite party in that Court, relating to survey plot No. 2479 of village Ghuthni. A proceeding under Section 144 of the Code of Criminal Procedure was drawn up against both the parties. The petitioner, however, appeared, and made a prayer that the proceeding should have been started under Section 133 of the Code of Criminal Procedure; and the Sub-divisional Magistrate converted the above proceeding into one under Section 153, and passed a conditional order under that section asking the first party Ramesar Prasad to remove the encroachment or to show cause, if any On 26-2-1958, the opposite party showed cause, and the following order was passed:

(3.) In support of the reference, reliance has been placed on a decision of this Court in Rajaram Singh v. Keshari Rai, AIR 1942 Pat 468 : 43 Cri LJ 423 in which it was held that all the jurors must take part in the deliberations of the jury, and unless they had done so, there could be no verdict of the jury. Applying the above principle of law, it has to be held in the present case that there was no legal verdict of the jury which could be acted upon,