SHYAM SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a reference submitted by Additional Sessions Judge No. 3, Jaipur City, recommending that the order of Mr. Tara Prakash Joshi City Magistrate, Jaipur City, declaring the possession over the disputed property in favour of Ravi Shanker and Smt. Kamla, non-applicants Nos. 2 and 3 on the date of the preliminary order, be quashed.

(2.) BRIEFLY stated, the facts of the case are that a report under Section 145, Criminal Procedure Code was made in the court of City Magistrate Jaipur City on July 26, 1969 by the police that Shyam Singh on the one side and Ravi Shanker and Mst. Kamala on the other were asserting their respective claims over the possession of certain portion of the temple situate at Khara Kua Jaipur City. It was further reported that there was likelihood at breach of the peace and, therefore, the property should be attached and the parties should be bound over to keep the peace and be of good behaviour. On receiving that report, the City Magistrate issued notices to the aforesaid parties asking them to put in their written statements of their respective claims as respects the fact of actual possession over the subject of dispute and further requiring them to put in such documents or to adduce, by putting in affidavits, the evidence of such persons as they relied upon in support of such claims. The parties submitted their replies, relevant documents and affidavits. The City Magistrate after making necessary inquiry and examining the records held that non-applicants Ravi Shanker and Smt. Kamala were in actual possession of the disputed property on the date of the preliminary order and directed that the possession of the property should be made over to them. Aggrieved by that order, a revision petition was filed in the Court of Sessions Judge Jaipur City. The case, it appears, was transferred to the court of Additional Sessions Judge No. 3. Mr. Shyan Behari Lal Mathur, Advocate, representing Shyam Singh filed an application stating that Mr. Tara Prakash Joshi was personally interested in the case and, therefore, he was not competent to hear it in the capacity of the City Magistrate by virtue of Section 556, Criminal Procedure Code. Mr. Joshi had previously held the post of the Deputy Commissioner. Devasthan, Jaipur and in that position he had conducted an inquiry about the disputed property. He had also inspected the site on July 13, 1969 and had recommended that the said property should be taken over by the Devasthan Department. That order had been passed by the Deputy Commissioner when proceedings under Section 145, Cr. P. C. had already been initiated in the court. Later on Mr. Tara Prakash Joshi took over charge as City Magistrate Jaipur City. He should, therefore, have not dealt with this case. Learned Additional Sessions Judge agreed with the contention and has submitted this reference to this Court with the above recommendation.

(3.) RAVI Shanker and Mst. Kamla are represented by Mr. N. M. Kasliwal, who opposes the reference. Shyam Singh is unrepresented. Mr. G. A. Khan. Deputy Govt. Advocate supports the reference. Mr. Kasliwal's main contention is that objection, if any regarding hearing of the case should have been taken in the court of the City Magistrate at its initial stage. Since Shyam Singh abandoned the objection in the course of proceedings under Section 145 Cr. P. C. he could not have been permitted to raise protest against the Impugned order of the City Magistrate in the court of Additional Sessions Judge. In support of his contention he relied upon Rameshwar Bhartia v. State of Assam and Sudhindra Nath Dutt v. The State. The counsel also referred to Manak Lal v. Dr. Prem Chand.