DIWAN SINGH Vs. STATE
LAWS(RAJ)-1952-12-8
HIGH COURT OF RAJASTHAN
Decided on December 08,1952

DIWAN SINGH Appellant
VERSUS
STATE Respondents


Cited Judgements :-

MOHAR SINGH VS. KANCHAN [LAWS(RAJ)-1975-1-10] [REFERRED TO]


JUDGEMENT

Sharma, J. - (1.)THIS is a reference by the learned Additional Sessions Judge, Bundi recommending that the order of the Sub-Divisional Magistrate, Bundi attaching the property in dispute under sec. 146 Criminal Procedure Code be set aside.
(2.)THE parties did not appear in court in spite of notice. I have gone through the record of the case and the judgment of both the lower courts. It appears that both oral and documentary evidence was produced before the learned Sub-Divisional Magistrate but he did not apply his judicial mind to it with a view to come to the conclusion whether one party or the other was in actual possession of the property in dispute within two months of the preliminary order. An order under sec. 146 Criminal Procedure Code can only be made if the Magistrate decides that none of the parties was in possession of the property or is unable to satisfy himself as to which of them was in possession of the subject of dispute at the time required under sec. 145 Criminal Procedure Code. An order under sec. 146 is to be passed in exceptional cases when it is impossible for the Magistrate to choose between the conflicting evidence adduced by the two sides. THE fact that it is difficult to decide the question of possession will not justify an order under sec. 146. If the Magistrate thinks that the evidence for one party, weak though it may be, was preferable to the evidence for the other party, it is the Magistrate's duty to decide in favour of the former. In this case, the Magistrate has not made any attempt to weigh the evidence of the two parties and thus come to the conclusion whether it is possible to give finding in favour of one of the parties. THE learned Magistrate ought not to have shirked the duty which law has cast upon him.
Reference is accepted, the order of the Sub-Divisional Magistrate dated the 25th November, 1951 attaching the property under sec. 146 Criminal Procedure Code is set aside and he is directed to decide the case after considering the evidence of both the parties in accordance with law. .



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