FAQIRCHAND Vs. HARJI

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Khetri, under section 436 of the Code of Criminal Procedure recommending that the Sub-Divisional Magistrate, Khetri, be directed to comply with the provisions of sub-section (3) of section 145 of the Code of Criminal Procedure before proceeding to enquire into the question of possession under sub-section (4) of that section, in a case under section 107/145 of the Code of Criminal Procedure against Harji and others pending in his Court.

(2.) THE facts of the case, in brief, are that Faqir Chand filed an application before the Sub-Divisional Magistrate, Khetri, under section 107/145 of the Code of Criminal Procedure on the 9th of June, 1949, upon which notices were ordered to be issued to the opposite parties according to law. As none of the parties was present on the date fixed for hearing, i. e. , on the 21st of June, 1949, the case was adjourned to 13th July, 1949. On that date only one of the parties appeared, and adjournment was given for the 21st of July, 1949, but on that date also the case was adjourned to the 5th of August, 1949. Again there were several adjournments and ultimately on the 20th of September, 1949, the opposite parties were present, but as the complainant's witnesses were absent, the learned Magistrate fixed 7th October, 1949, for hearing and ordered him to pay Rs. 40/- as costs to the opposite parties. Against this order the complainant moved the Additional Sessions Judge, Khetri. THE learned Additional Sessions Judge was of the opinion that a notice as required by sub-section (3) of section 145 of the Code of Criminal Procedure was not published by being affixed to some conspicuous place at or near the subject of dispute, and the noncompliance with the mandatory provi-sion of the aforesaid sub-section vitia-ted the proceedings of the Sub-Divisional Magistrate, and, therefore, he has recommended that the Sub-Divisional Magistrate be directed to comply with these provisions before proceeding to enquire into the question of possession under Sub-section (4) of the said section.