K.B.SRIVASTAVA, J. - (1.) THIS reference to the Full Bench raises an important question as to the interpretation of Sub-section (1) of Section 146 of the Code of Criminal Procedure, 1898 with respect to which there is some conflict of opinion.
(2.) THE facts giving rise to the reference, may now be stated in brief: In proceedings under Section 145, after the parties had put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and their documents and their own affidavits and had adduced, by putting in affidavits, the evidence of such persons, as they relied upon in support of their claims, the Sub-Divisional Magistrate, without drawing up a statement of the facts of the case and without giving his reasons as to how he was 'unable to decide as to which of them' was in possession on the date of the preliminary order or within two months next before that date, forwarded the record of the proceeding to the Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the preliminary order, or within two months next before it and directed the parties to appear before the civil Court on the date fixed by him. The reference to the civil Court was based on the following order: "Case taken up today. Heard arguments. I could not reach any decision on the question of possession of the subject of dispute at the date of the preliminary order or within two months next before it. Hence the case is referred to the Court of the Munsif-Magistrate, Barabanki, under Section 146." The petitioner Daya Ram Sharma challenged the validity of the order in a revision before the Sessions Judge on two grounds, namely, (22 Cr. L. J.) that the jurisdiction of a Magistrate to make a reference to the civil Court of competent jurisdiction comes into existence when he- (i) is of opinion that none of the parties was then in such possession, or (ii) is unable to decide as to which of them was then in such possession and (2) in case the foundation for assumption of jurisdiction is there, he must draw up a statement of the facts of the case before forwarding the record of the proceeding to a civil Court of competent jurisdiction and a failure to observe either of these two requirements, could render the reference invalid and liable to be set aside. The learned Sessions Judge over-ruled these two contentions and that gave rise to a criminal revision in this Court.
(3.) THE revision came up for hearing before one of us and due to conflict in decisions, the matter has been placed before this Full Bench for an authoritative pronouncement.;