- (1.) THIS reference has been made by the learned Sessions Judge of Kumaon recommending that the order of the learned Sub-Divisional Magistrate, Dharchule, dated 30th of December, 1961, made in proceeding under Section 145 Cr. P. C. be set aside and the case be remanded for fresh enquiry on the basis of the affidavits which the parties should be called upon to file.
(2.) THE case came up before our brother Mathur, J. and he was Inclined to the view that as no failure of Justice had been occasioned because of not requiring the parties to file affidavits the irregularity was curable under Section 537 Cr. P. C. the effect of which section was not considered in the case of Bhagwat Singh v. State, AIR 1059 All 763, a decision on which the learned Sessions Judge had relied in making the recommendation under consideration. He accordingly directed the papers to be laid before the Hon'ble the Chief Justice for constituting a larger Bench for the disposal of the reference.
(3.) DALIP Singh, opposite party had filed an application under Section 145 Cr. P. C. The learned Magistrate, who made preliminary order did not direct the parties to file affidavits in support of their respective cases. He merely directed the parties to file their written statements. On the date fixed for hearing the parties adduced oral evidence and it was on a consideration of that evidence that the learned magistrate decided the application under Section 145 Cr, P. C. In favour of the opposite party. As against that order an application in revision was filed by the applicants before the learned Sessions Judge who made the present reference. The relevant portions of Section 145 Cr. P. C. read as below:-- " (1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries theorof within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. ;