SEGO PATEL Vs. PARASHRAM

JUDGEMENT

(1.) IN Miscellaneous Criminal Case No. 15 of 1925, the First Class Magistrate, Balaghat, passed an order under Section 145, Criminal Procedure Code, declaring the non-applicant, Zitoo, to be in possession of certain absolute and occupancy fields in Mouza Sonzara regarding which there was a likelihood of a breach of the peace occurring. The order was passed ex-parte under circumstances to be referred to hereafter. The present applicant then moved the Sessions Court, Bhandara, for interference by way of revision but this was unsuccessful and the applicant has now moved this Court towards the same end.

(2.) AFTER hearing parties I am satisfied that this is a case in which the procedure of the Magistrate cannot stand. Originally notice issued to applicant for a hearing fixed for 11th July 1925. The connected notice was shown or served on his brother on the previous day, a quite insufficient time to allow of his appearance, applicant's village being some 20 miles from Balaghat. In any event the endorsement shows that applicant was then absent from his village and was said to be at Waraseoni. However this may be, the Magistrate on 11th July 1925, ordered fresh notice to issue for 28th July 1925, the original notice not then having been received back. The endorsement on the second notice shows that applicant was again absent from his village and was said to have gone to Balaghat. On 28th July 1925 however, the Magistrate presumed that there had been sufficient service and proceeded ex-parte. The Additional Sessions Judge, in passing the order he did has relied on the decision of Hallifax, A.J.C., in Criminal Revision No. 225 of 1923 decided on 20th October 1923 Bhure Khan v. Fakira A.I.R. 1924 Nag. 171 and on Sukh Lal v. Tara Chand [1903] 33 Cal. 68, but in both these cases it was clear that the party professing to be aggrieved, had full knowledge of the proceedings. In the present case this is precisely the factum which is not established. There can be little more than a suspicion, certainly no certainty, that applicant knew of the proceedings. Moreover, there has been no proof that due diligence was used to effect service on applicant. Not only so but there is nothing to show that the Magistrate ordered or took steps to have affixed to a conspicuous place at or near the subject of dispute a copy of the preliminary order.