SARDHA PRASAD Vs. PITAMBER LAL

JUDGEMENT

(1.) THIS is an application in revision contesting an order of the learned Joint Magistrate of Allahabad, which purports to have been passed under Section 145, Criminal Procedure Code. The relevant facts of the case are as follows: One Shah Haji Jan and some others are the owners of a Mandi in the town of Allahabad known as Khalifa Ki Mandi. The applicant, Pitamber Lal, was the lessee of that Mandi, and his lease, which is said to have been given in 1902, was to expire on the 21st of June 1912. Prior to the expiry of his lease, another lease was given to Sardha Prasad and Bhola Ram as long ago as 1938, which was to take effect on the expiry of the lease of Pitamber Lal, i, e., after the 21st of June 1912. On the 26th of June 1912, the Police submitted a report that there was a likelihood of the breach of the peace between the two lessees over the collection of the Mandi dues. The Magistrate acted on that report and issued notices to the applicant and the opposite parties on the 27th of June 1912 to show cause. On the 9th of July 1912, the learned Magistrate made an order referring two issues to the Tahsildar for a report. The order of the Magistrate must be quoted here in order to appreciate the contention of the applicant. The order is as follows: "Parties appear before me to-day and put in their written statements. The matter is obviously-one for local inquiry such as is provided for in Section 148, Criminal Procedure Code. The Tahsildar will conduct this local inquiry and make a full report to me on the result. The papers forming the record of this case, including the written statements of the parties, will be sent to him to aid him in his inquiry. The main facts at which he must strive to arrive are;--(1) Were any, and if so, which, of the parties in possession of the share of the Mandi at the time when this trouble first arose, i.e., the 26th and 27th of June? (2) Had any party within two months next before that date been forcibly and wrongfully dispossessed? The Tahsildar will have no concern with the merits of the claims of the parties to possess the share of the Mandi. He must devote his attention to the points I have mentioned above, and there will be no need for him to go into a long discussion about title-deeds and the like. His report should be submitted within ten days time. Case to be put up after ten days". The Tahsildar submitted his report on the two issues. No evidence was recorded by the Magistrate on behalf of Sardha Prasad and Bhola Ram. Some evidence was recorded on behalf of Pitamber Lal. On the 9th of August 1912, the learned Magistrate accepted the report and the conclusions of the Tahsildar and passed an order in favour of Sardha Prasad and Bhola Ram. Pitamber Lal is dissatisfied with that order and has come up in revision to this Court. He has taken three legal objections to the proceedings in the lower Court. He says that the learned Magistrate did not write an order stating the reasons which made him believe that there was a likelihood of the breach of the peace between Pitamber Lal and his opposite parties. Further, it is said that no copy of such an order was served on the applicant. The last and the most important objection is that the order of the lower Court proceeds practically upon the report of the Tahsildar. The learned Magistrate could not under the law, it is said, refer the inquiry into the issues raised in the case to the Tahsildar. I think that this last objection is sound and must prevail. A perusal of the order of the learned Magistrate dated the 9th July 1912, shows that the issues involved in the case were remitted by him to the Tahsildar,for inquiry and trial, The learned Magistrate did not hear all the evidence himself in the case, and his order clearly shows that he accepted the report of the Tahsildar in its entirety. According to the admitted facts in the case, Pitambar Lal was in possession up to the 21st of June 1912. He could not have given up possession willingly and then turned round in five days, i.e., on 26th June 1912 (the date on which the Police made a report) and contested the possession of Sardha Prasad and Bhola Ram. The learned Magistrate, it is said, would have come to a different conclusion had he taken all the evidence himself without expressing any opinion as to the merits of the case. I think that the proceedings of the lower Court are open to objection. The order of 9th July 1912 purports to have been made under Section 145, Criminal Procedure Code, which does not enable a Court to have the trial of the issues raised in a case determined by a Court subordinate to itself. The case of In re Baikunt Kumar 3 C.L.R. 134 is in point. I, therefore, think that the proceedings of the lower Court were not held according to law. I, therefore, set aside the order of the learned Magistrate, dated the 9th of August 1912.