HANUMAN Vs. STATE

JUDGEMENT

(1.) THESE are two references made by the Additional Sessions Judge, Jhunjhunu in a case under sec. 145 filed by the police, Malsisar with the allegation that there was a dispute likely to cause breach of the peace concerning a shop in the town of Malsisar between Jiwan Khan the first party and Hanuman the second party. The learned Sub-Divisional Magistrate after-calling for the written statement under sec. 145 (1) Criminal Procedure Code and recording evidence held that he was unable to come to a finding as to which of the party was in actual possession of the property in dispute on the date of the preliminary order and consequently he ordered under sec. 146 of the Criminal Procedure Code that the property be attached until a competent court has determined the rights of the parties thereto or the persons entitled to possession thereof. Against this order, both the parties went in revision to the court of the Additional Sessions Judge, Jhunjhunu and he has found that the learned Magistrate did not apply his judicial mind to the evidence in the case with a view to find out as to which of the parties was in actual possession. He has, therefore, recommended that the judgment of the learned Magistrate was not a judgment in law and it should, therefore, be set aside and case be remanded for enquiry in accordance with law.

(2.) NEITHER of the parties has appeared nor has any counsel appeared on behalf of any of the parties I have gone through the record and also the judgment of the learned Magistrate, as well as the order of the learned Sessions Judge. On a reading of the judgment of the Magistrate, I am certainly of opinion that it does not show that he at all made a serious effort to appreciate the evidence of the two parties in the case. He has not named a single witness examined on behalf of either party, nor what was stated by any of the witnesses produced. He has not said what the documentary evidence produced in the case showed. The only thing that he has said is that the witnesses were either ignorant about the shop in dispute or they were independent. The learned Magistrate does not discuss the oral or documentary evidence at all and has given only his impressions. It is not possible for a court of revision to find out from the judgment whether the impressions of the Magistrate were correct or not. As has been held by this court in a number of cases the judgments of the subordinate courts should be self-contained so that the higher courts might be able to know what was the nature of evidence produced and whether the finding of the lower court about the evidence was correct or not. No appeal lies against an order under sec. 145, and it is open only to revision. The court of revision cannot ordinarily go into evidence and it is for the court who is the final judge of facts to deal with the case in the judgment so that the court of revision might know that the evidence has been judicially considered. In the present case, it cannot be said from the judgment of the Magistrate that the evidence was judicially considered as it ought to have been. An order under sec. 146 of the Criminal Procedure Code should be made only after judicial consideration of the evidence produced by the parties, if it is impossible for the Magistrate to choose between the conflicting evidence adduced by the two sides. As held in Nandkishore Singh and others vs. Bigan Lohar (1) (A. I. R. 1940 Patna, p. 113.), an order under sec. 146 attaching the property is a desperate remedy for cases in which the Magistrate finds it quite impossible to choose between the conflicting evidence adduced by the two sides. If the Magistrate thinks that the evidence for the first party, weak though it might be, was preferable to the evidence for the second party, it will be the Magistrate's duty to give a decision in favour of the first party. It was therefore, necessary for the Magistrate to decide the question of actual possession after judicially balancing the evidence produced by the either party. Only, if after so balancing, it was impossible for him to decide the question of actual possession he could make an order of attachment under sec. 146. As has been said above, far from showing that the evidence of the two parties was judicially balanced the judgment of the learned Magistrate shows that he did not at all make a serious effort to appreciate the evidence produced by the parties. His judgment cannot, therefore, be maintained.