JAIRAM THAKUR Vs. PRAHLAD HAZRA

JUDGEMENT

(1.) This is an application in revision by the petitioner who was the first party in the court below, against the final order passed in a proceeding under Section 145 of the Code of Criminal Procedure (1898) on the 17th December 1973 by a Magistrate, First Class, Jamui, declaring the possession of the opposite party, who was the second party there.

(2.) Learned lawyer appearing for the petitioner has submitted that the impugned order of the learned Magistrate aforesaid cannot be maintained even for a moment as the learned Magistrate has neither relied upon the affidavits of the parties nor upon the documents that were filed in support of their claim, but has declared the possession of the opposite party on the basis of the police report alone. It is needless to state here that on the basis of the police report only the learned Magistrate was not justified in declaring the possession of the opposite party when he has not relied upon the affidavits and documents of either of the parties and specially when the, police report on which the learned Magistrate has placed reliance is not supported by affidavits. The police report at best can be only evidence of fact that the police had visited the spot but on the basis of the police report alone, the possession of any of the parties in a proceeding under Section 145, Cr.P.C. cannot be decided. Hence, the impugned order of the learned Magistrate has got to be set aside and the case has to be sent back to the court below for deciding the question of possession afresh.

(3.) In the result, the application is allowed, the impugned order of the learned Magistrate is set aside and the case is sent back to the court below for deciding the question of possession after considering the affidavits and documents of the parties. Let the record of the case be sent down at once.