UDAMI Vs. STATE

JUDGEMENT

(1.) THIS revision application has been filed on behalf of Udami and 15 others against an order of the Sub-Divisional Magistrate, Jhunjhunu, dated the 18th September, 1950, by which under sec. 145 of the Code of Criminal Procedure possession of Natha and others has been declared in respect of field No. 198 in village Kuloth. The petitioners first went to the Court of Additional Sessions Judge, Jhunjhunu, who dismissed their revision petition.

(2.) THE facts of the case are that a challan was presented by the police in the Court of Sub-Divisional Magistrate Jhunjhunu, under sec. 107 of the Code of Criminal Procedure, against Natha and 7 others. At the same time, Natha and Sheonarain filed a complaint in the same court under sec. 107 of the Code of Criminal Procedure against Udami and 13 others. In both the cross cases the Magistrate issued notices under sec. 112 of the Code of Criminal Procedure. On the 14th of August, 1948, the Magistrate converted the proceedings from sec. 107 to those under sec. 145 of the Code of Criminal Procedure, and ordered both parties to adduce their evidence. Ultimately, on the 18th of September, 1950, after recording the evidence of both the sides, the Magistrate decided in favour of Natha and others and declared their possession. In his order, the Magistrate has, however, concentrated more on the fact of right to possession rather than on possession itself. THE petitioners have challenged the order of the Sub-Divisional Magistrate on the following grounds : - (1) That the Magistrate failed to record a preliminary order under sec. 145 of the Code of Criminal Procedure and the Magistrate had no jurisdiction to take any action under sec. 145, as he did not apply his mind to the case in order to decide whether there was any apprehension of a breach of the peace. (2) That no notices under sec. 145 of the Code were issued to any of the parties, nor was a copy of the order put on the disputed property of the persons. Three, viz. , Hari Baksh, Kalyan Singh and Sohan Singh who have come in revision to this court, and against whom the order of the Magistrate has been made, were not served with any notice whatsoever. THE proceedings in the Court of Magistrate were taken behind the back of these persons. (3) That none of the parties was asked to file his claim in the Court of the Magistrate, and the enquiry was, therefore, not proper. (4) That while the evidence of Udami and others was being recorded, the Magistrate refused to take the evidence on a false objection of the other side, that costs amounting to Rs. 18/- were not paid to them. THE Magistrate, it is said, failed to take down the evidence without any good reason, which go to vitiate the proceedings in the court below. (5) That the Magistrate did not give any finding as ragards the fact of possession of the disputed property at the time of making of the preliminary order or within two months prior to that date, but in fact the Magistrate decided the case on the point of right to possession.