STATE OF BIHAR Vs. HARI MISHRA

JUDGEMENT

(1.) This reference was made by the Munsif of Araria through the District Judge of Purnea. It appears that by an order dated 15-2-1960 Mr. S.N. Varma, Sub-divisional Magistrate of Araria, referred a case under Section 146 (1) of the Code of Criminal Procedure to the learned Munsif of Araria for decision as to the question of possession between the rival claimants over the subject-matter of a proceeding under Section 145 of the Code of Criminal Procedure. The order of the Sub-divisional Magistrate was to the following effect:

(2.) The learned Munsif thought that the objection taken appeared to be valid and, therefore, he has referred the matter posing the following questions: "1. Whether it is open for a Magistrate to refer a case under Section 146 (1) of the Cr. P. C. to a Civil Court without drawing up statement of the facts of the case and without expressing his opinion that he is unable to decide the question of possession. 2. Whether it is open for the Civil Court to return back the reference to the Magistrate concerned, when the reference is not in accordance with law as provided under Section 146 (1) of the Cr. P. C.

(3.) Whether it would be within the jurisdiction of the Civil Court to decide the question of possession on a reference like the present one". Section 145 of the Code of Criminal Procedure lays down the procedure how the proceeding is to be conducted. As provided in Sub-section (1), the parties are required to put in their documents or to adduce, by patting in affidavits, the evidence of such persons as they may rely in support of their claims. Sub-section (4) then provides: