BHANWARLAL Vs. HARISINGH

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge of Merta.

(2.) ON 9th January 1948, Bhanwar Lal made an application to the Second Class Magistrate Parbatsar purporting to say that he was in possession of his Doli land under Bakania Bera in village Nenia and had cultivated the same but that the opposite party Har Singh, Jagirdar of the village, was preventing him from taking away a portion of the crop already lying there and had been preventing him from entering the land, and that there was an apprehension of a breach of the peace. The Magistrate, who was empowered under the law in force at the time to take cognisance of such complaint, fixed the case for next day for statement of the petitioner. ON that day he recorded the statement and passed the following order : - "applicant with his counsel present. His statement recorded. The case may be registered under sec. 145 Cr. P. C. and preliminary order be issued. Put up on 30th January 1948. " Thereafter, Hari Singh filed a written statement disputing the possession of Bhanwar Lal. He asserted his own possession and denied that there was any likelihood of a breach of the peace. Evidence was recorded by various Magistrates before whom the case was put up from time to time and was concluded by the first Class Magistrate, Nagaur. Arguments were heard and on 5th May 1951, the First Class Magistrate of Nagaur dismissed the complaint on the ground that the Second Class Magistrate, Parbatsar, did not record an order under sec. 145 Cr. P. C. in the manner it should have been drawn and the subsequent proceedings were vitiated. He did not decide the matter on the merits. ON revision, the learned Sessions Judge of Merta has recommended that the order of the First Class Magistrate, Nagaur dated 5th May 1951 was illegal and should be set aside and the case may be sent back to that court to decide the matter afresh according to law. An observation was made that if the Magistrate thought that there was an irregularity in the preliminary order which might affect the merits of the case, it was his duty to restart from that stage.

(3.) THE question which was important was whether any prejudice had been caused to the parties. On a perusal of the record it is apparent that the opposite party filed his written statement and evidence was also led by both the parties and the case was argued before the Magistrate. Instead of deciding the case on the merits, the complaint was thrown out on the preliminary ground. Learned counsel for the opposite party was not able to show any prejudice caused by the preliminary order not having been drawn up in a formal manner.