(1.)THERE is agricultural land, Khasra No 30, measuring 12 Bighas and 15 Biswas, situate on the precincts of village Khalasi, Police Station, Mandawa, District jhunjhunu. Joraram, party No 1 it appears, made first information report in the above Police Station against Harlal, party No. 2, under Section 447, I. P. C. on may 13, 1966, in respect of the above land. Thereafter Joraram submitted another application to the Superintendent of Police, Jhunjhunu, against Harlal and others under Sections 107 and 117, Cr. P. C. , stating therein that there was apprehension of breach of the peace. That application was transmitted to the Station House officer, Mandawa, for investigation. Party No. 2 Harlal also submitted an application against party No. 1 Joraram to the Sub-Divisional Magistrate, jhunjhunu. under Sections 107 and 117, Cr. P. C. That application too was sent to the Station House Officer, Mandawa, for investigation. The Station House Officer inquired into the matter and reached the conclusion that there was likelihood of breach of the peace, as both the parties put up rival claims in respect of the disputed land. On receipt of such report by the Sub-Divisional Magistrate, proceedings were started under Section 145, Cr. P. C. Preliminary order was issued on July 23, 1966. It was ordered by learned Sub-Divisional Magistrate that the parties should file their written statements, affidavits, documents, etc. , in support of their respective claim over the disputed property. Next date fixed for the hearing was august 25. 1966. On that date parties put in their affidavits. That very day, party no. 2 Harlal made an application for summoning Ramjilal Patwari. He was ordered to be summoned. The case was then adjourned to September 1, 1966. For that date neither Mst. Bhagwani nor the Patwari were summoned. The case was adjourned to September 19, 1966. It was further adjourned to September 21, 1966. That day Mst. Bhagwani asked for further time to file her written statement. Time was accordingly given and the case was ordered to be taken up on September 24, 1966. That day learned Sub-Divisional Magistrate, Jhunjhunu, was on tour and the case was ordered to be fixed on September 26, 1966. On this date, Mst. Bhagwani submitted her written statement. She also moved an application for summoning certain witnesses for filing affidavits, as they did not want to attend the court at her request. That application was rejected by the Sub-Divisional Magistrate on september 26, 1966, on the ground that there was no provision in Section 145, cr. P. C. , to summon witnesses at the request of a party and the case was ordered to be taken up on October 3, 1966. That day another application was submitted by mst. Bhagwani, requesting the court to summon two of her witnesses, namely, ramjilal and Jaswant Singh, as these Patwaries being Government servants would not attend the court at her request. However, the Sub-Divisional Magistrate was on tour that day. That application was, therefore, ordered to be taken up on his return from tour. On October, 10, 1966, the application was rejected by the Sub-Divisional magistrate and the case was ordered to be fixed for arguments to be addressed on october 29, 1966. The Sub-Divisional Magistrate rejected the prayer of Mst. Bhagwani on two grounds, namely, (1) that the application had been submitted after the evidence of the parties had been closed and (2) that there was no necessity to call the Patwaries. Against that order, a revision application was preferred in the court of learned Sessions Judge, Jhun. ihunu. The said Judge submitted a reference to this Court, stating that the Sub-Divisional Magistrate went wrong in re'fusing to summon Mst. Bhagwani's two Patwari witnesses. He, therefore, recommended that the impugned order dated September 26, 1966. passed by the Sub-Divisional Magistrate, Jhunjhunu, be directed to be quashed.
(2.)LEARNED counsel for party No. 1 argued that the Magistrate had jurisdiction under Section 145 (9), Cr. P. C. , to summon witnesses on the application of party no. 1 and as the two Patwaris, namely. Ramjilal and Jaswant Singh, were important witnesses, to show possession over the land in dispute, they ought to have been called by the court. Learned counsel further argued that the Sub-Divisional Magistrate did not apply his mind to the facts of the case, and arbitrarily rejected the application of Mst. Bhagwani and thus the discretion exercised by the court could not be said to be a judicious one. Learned counsel, representing the side opposite, on the other hand, urged that the sub-Divisional Magistrate, Jhunjhunu, exercised his jurisdiction and, therefore, the high Court should not interfere in that order. Learned counsel for party No. 2 further urged that Sub-section (9) of Section 145, Cr. P. C. , is controlled by Subsection (4) of Section 145, Cr. P. C. The Legislature according to him, amended section 145, Cr. P. C, by Act No. 26 of 1955, so that parties could file only written statements, affidavits, documents, etc. , in support of their rival claim and the court may decide the dispute under Section 145, Cr. P. C. , expeditiously. He has cited certain authorities in support of his comments.
(3.)THE Sub-Divisional Magistrate wrote in his order that the application of Mst. Bhagwani was made after the closure of the evidence and that he did not think it proper at that stage to allow her application. The Magistrate has nowhere stated that the two witnesses, Ramjilal and Jaswant Singh Patwaries, were redundant or that the prayer for summoning them was made with mala fide intention. Mst. Bhagwani submitted two applications, one on October 3, 1966, and the other on october 4, 1966. On October 3, 1966, the evidence of the parties was not closed, as on that day party No. 1 was required to put in affidavits of witnesses. That apart, the Sub-Divisional Magistrate was not at the headquarters on October 3, 1966. Similarly, on October 4, 1966, the Sub-Divisional Magistrate, was on tour. The case was fixed for October 10, 1966. and on that date the Sub-Divisional magistrate dismissed the application on the above grounds. It is thus apparent that the factual position that the parties' evidence had been closed, on October 3, 1966, was wrongly mentioned by the Sub-Divisional Magistrate.