- (1.) P. K. Jain, J. List has been revised. None appears for opposite party No. 1.
(2.) HEARD Shri S. A. Shah, learned coun sel for the revisionist and learned AGA for the State. Inprecedence under Section 145 Cr. P. C. the City Magistrate vide his judgment and order dated 24-2- 83 arrived at the find ing that the first party Shabih Haider (revisionist in the present revision) was in possession of the disputed property on the date of the preliminary order and two months next before passing of the preliminary order. The final order was passed by the City Magistrate inconformity of these find ings. The opposite party, Rafiqul Hasan preferred criminal revision No. 55 of 1983 against the judgment and order of the City Magistrate which was allowed by the revisional court vide judgment and order, dated 5-8-83 on the ground that the City Magistrate has relied upon the photo stat copies of certain documents and First Infor mation Report which are not admissible in evidence unless proved in accordance with law. The second grounds on which the find ing of the trial court was set aside was that the learned City Magistrate has not con sidered the effect of the subsequent events viz that the revisionist Rafiqul Hasan took possession of the said house on 24-6-80. The revisional court observed as follows: "the learned City Magistrate, Moradabad, has also not taken into account the subsequent event that the revisionist had forcibly taken pos session of the house on 24-6-80 and its effect. " While passing the order of remand the revisional court directed the City Magistrate that he will also take into ac count the alleged change of events, that is, alleged taking of possession, by the revisionist on 24- 6-80 illegally by force. In this revision before this Court it is urged that the observation and direction of the revisional court so far as it related to taking into consideration the alleged change of possession by the revisionist and his taking on unauthorised possession on 24-6-80 are concerned the same are against the spirit of provisions contained in Section 145, Cr. P. C.
(3.) LEARNED AGA contends that so far as remand order is concerned it has to be sustained on the ground that while arriving at the finding of possession in favour of present revisionist the City Magistrate was influenced by the evidence which was inad missible. Having considered the rival argu ments I find, that so far as remand order is concerned it cannot be disturbed for the reason that while deciding the question of actual physical possession the City Magistrate had taken into consideration the evidence which was not admissible. How ever, the observation of the learned Ses sions Judge, who decided the revision, that the learned City Magistrate has not taken into account the subsequent event of for cible possession by the revisionist and con sequent direction by the revisional court that the effect that change in the cir cumstances shall also be taken into con sideration by the trial Court cannot be sus tained.;