JHABBA Vs. DALCHAND

JUDGEMENT

(1.) THE applicants have been ordered by a Magistrate of the first class to-refrain from interfering with the cultivation of certain fields by one Dalu. THEy complain that they had no opportunity of producing evidence and that the Magistrate acted without jurisdiction. It has been held in several cases by this Court that, notwithstanding the provisions of Section 435, Sub-section (3) of the Code of Criminal Procedure, this Court can interfere with orders of this kind passed by a Magistrate where the Magistrate has made no order at all showing that he was satisfied that a dispute likely to cause a breach of the peace existed concerning the land. In the present case, there is no preliminary order whatever. THEre is simply an application by one party, on which the Magistrate said that he himself would visit the fields. He visited the fields, called upon the parties to put in statements of their case and, without allowing either side an opportunity of producing evidence, passed the order now complained of. THE order appears to be based partly on revenue records, partly upon a report made by the Kanungo and partly upon information obtained by the Magistrate when he inspected the fields. Although, according to the decisions of this Court, I have power to interfere, I think that I ought not to do so unless I have reason to suppose that the applicants have been prejudiced by reason of the procedure adopted by the Magistrate. But I find that the Magistrate not only failed to record a preliminary order, but he failed to observe the provisions of Sub-section (a) of Section 145, the opening words of which require the Magistrate to decide, without reference to the merits of the claims of any of the parties to a right to possess the land, and he has not decided at all who was in. possession when he started these proceedings. THE proceedings were irregular throughout and were conducted with a haste which was calculated to prejudice the parties. It is impossible to resist the conclusion that they were pre-judiced in view of the fact that they were not allowed to give evidence and the Magistrate approached the case from a wrong standpoint. I set aside the order of the Magistrate, dated the 6th of November 1911.