RAM SANEHI SINGH Vs. DHARAMRAJ SINGH

JUDGEMENT

(1.) THIS revision is directed against an order declaring the possesion of the opposite party in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') in Consonance with the findings of the Civil Court recorded on a: reference made under Section 146 (1) of the Code.

(2.) THE main contention of Mr. Pandey appearing on behalf of the petitioner is that the order dated the 27th July, 1967, by which the learned Magistrate referred the proceeding under Section 146 (1) of the Code was invalid inasmuch as the learned Magistrate made no effort in the said order to discus that evidence at all from which it could appear that he was unable to decide the question of possession and hence he was referring the matter to the Civil Court. He has therefore urged that the reference being itself invalid) the impugned order of the learned Magistrate recorded under Section 145 of the Code on the basis of the findings of the Civil Court under Section 146 (18J of the Code was with, out jurisdiction Reliance was placed on a Bench decision of this Court in the case of State of Bihar v. Had Mishra AIR 1985 Pat 411 : 1965 (2) Cri L J 527 in support of the submission that the invalidity of the reference made the subsequent orders wholly without jurisdiction. It was for consideration of that question that the matter has been referred to a Division Bench.

(3.) MR. Pandey has also urged that the Magistrate while forwarding the record has not drawn up any statement of facts of the case as required under Section 146 (1) of the Code. The failure to forward the statement of facts along with the records also in my opinion will not be a fatal defect so as to invalidate the order as the entire records were forwarded to the Munsif. I am not suggesting for a moment that a Magistrate should not forward the statement of facts as laid down under Section 113 (1) of the code but on the other hand I must emphasise that the Magistrate should have been careful In com-plying with the requirements of the law. The view that I have taken gains support from the observation of Gosawami J., as he then was in the case of Ram Likhan Rai chaudhary v. Raghunath chaudhary A I R 1969 Assam and Naga 81 : 1989 Cri L J 854.