MANGA Vs. DHANA

JUDGEMENT

(1.) THIS reference originally came before me. It was argued by the learned counsel for the respondent that there was a Division Bench authority of this court reported as A. I. R. J&K 1959, 16, which had taken a view contrary to the views expressed by me in some cases about the contents and validity of a preliminary order under Section 145 Cr. P. C. I, therefore, thought it fit to refer the matter to a Full Bench of this court for an authoritative pronouncement.

(2.) THE facts giving rise to this reference are that proceedings were started under Section 145 Code of Criminal Procedure by Dhanna against Manga and others pertaining to a house in Gajansou. The preliminary order passed by the trial court, which has been reproduced by the learned Sessions Judge in his order of reference is as under: - Thereafter the proceedings were held under the provisions of section 145 Code of Criminal procedure which terminated in favour of Dhanna declaring him to be in possession of the property and the other party was prohibited from disturbing his possession till he was evicted by a competent court in due course of law. A revision was preferred before the learned Sessions Judge, Jammu, who has remarked that the preliminary order passed by the trial Magistrate in this case is not in accordance with law. The learned Sessions Judge has held that the trial Magistrate has not satisfied himself as to the existence of a dispute likely to cause breach of peace nor has he recorded the grounds of his being so satisfied ; the Magistrate never issued a direction requiring the non -applicants to put in their written statements of their claims in respect of the fact of actual possession and to produce all documentary and affidavit evidence on which they rely in support of their claims. According to the learned Sessions Judge, the Magistrate only reproduced the allegations of the applicant and directed the issue of notice to the non -applicants to show cause as to why the house and other property be not given on the Superdnama to a respectative person. Such an order in the opinion of the learned Judge was not covered by any provision of law.

(3.) WE have heard the learned counsel for the parties.