NARAIN GANJHU Vs. PANCHO GAUNJHIN

JUDGEMENT

(1.) This application in revision arises out of a proceeding under Section 145 of the Code of Criminal Procedure. This proceeding was started at the instance of Mt. Pancho Gaunjhin, opposite first party. Notices were issued to the parties concerned in the dispute as provided in Section 145 of the Code, and both parties appeared, filed written statements, affidavits of evidence and documents in support of their respective claims. By his order dated 18-2-1958, the Sub-divisional Magistrate attached the properties in dispute under Section 146(1) of the Code of Criminal procedure, and forwarded the record of the proceedings to the Civil Court having jurisdiction to decide the question whether any and which of the parties was in possession of the subject of the dispute. His order is in the following terms :

(2.) Learned counsel appearing for the petitioner put forward the argument that after the receipt of the reference under Section 146(1) of the Code of Criminal Procedure, the Munsif is bound to give a decision on the question of possession, and that it was incompetent for the Munsif to return the records back to the Magistrate. Learned counsel pointed out that under Section 146 or for the matter of that under any other section of the Code of Criminal Procedure, there is no provision for return of the reference by the Munsif to the Magistrate concerned. His further contention was that if the parties did not choose to adduce any evidence in, spite cf the opportunity being afforded to them, the proper course for the Munsif was to decide the question of possession on the materials already on the record, and deliberate refusal by the parties to contest before the Munsif, or default of their appearance before him will not involve either rejection of the reference or its return to the Magistrate concerned.

(3.) Mr. R. P. Katriar, appearing for the opposite party, however, contended that in the circumstances the course adopted by the learned Munsif was the only proper course that could have been adopted, and the Court should not be kept at the mercy of the parties. If the parties did not choose to adduce any evidence, it was not necessary for the Munsif to record any decision on the reference made to him by the learned Magistrate. He further submitted that the primary object of the proceedings under Section 145 of the Code of Criminal Procedure was prevention of the breach of the peace, and this object was amply fulfilled in view of the attachment of the disputed properties and accordingly the Magistrate should have left the parlies to seek their remedy in Civil Court. On the plain language of Section 146, the contention of Mr. Katriar does not appear to be sustainable. Section 146 of the Code of Criminal Procedure is as follows :