- (1.) THIS is a reference by the Additional Sessions Judge, Jhun-jhunu recommending that the order dated the 2nd July, 1951 of the Sub-Divisional Magistrate, Khetri dropping the proceedings under sec. 145 Criminal Procedure Code be set aside. It has arisen under the following circumstances : -
(2.) ON the police report the learned Sub-Divisional Magistrate, Khetri made a preliminary order under sec. 145 (1) of the Code of Criminal Procedure dated the 16th June, 1951 calling upon the parties to file the requisite statements of their respective claims as respect the fact of the actual possession of a certain land in village Gorir District Jhunjhunu. 5th of July, 1951 was fixed for the filing of the written statements. The order of attachment of the property was also made and Krishna and others (hereinafter to be referred to as the first party and Goggar and others as the 2nd party) were called upon to execute personal bonds in the sum of Rs. 500/- each for not entering into the field in dispute dur-ing the pendency of the case. Before the said date arrived the first party filed an application praying that the attachment be raised, the possession of the property be delivered to them and the order of execution of personal bond be quashed. The learned Magistrate after hearing the arguments of both the parties on this application dropped the proceedings under sec. 145 by his order dated the 2nd July, 1951. The first party went in revision to the Court of Additional Sessions Judge at Jhunjhunu who has made this reference on the ground that without the filing of the written statement and giving an opportunity to produce evidence in respects the fact of actual possession the learned Magistrate was wrong in dropping the proceedings unless he was satisfied that no dispute as envisaged by sec. 145 (1) existed. As the learned Magistrate did not come to such a conclusion and cancel his preliminary order on this ground, his order dropping the proceedings is illegal. I have gone through the record and have also heard the learned Government Advocate who supports the reference. Learned counsel for the second party naturally supports it. The learned Magistrate ought to have waited for the i written statements of their claims of the actual possession by the parties up to the 5th of July, 1951 which was fixed for the purpose. Without waiting up to the said date and without giving any opportunity to parties to produce their evidence with respect to the actual possession, he proceeded to drop the proceedings on the 2nd July, 1951. This action of his was altogether illegal. Under sec. 145 (4) the Magistrate is bound to persue the written statements of parties' respective claims as respect the facts of actual possession of the subject of dispute hear the parties, receive all such evidence as may be produced by them respectively, consider the effects of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject. In this case the 'learned Magistrate did not even wait for the filing of the written statements of the parties. Without doing so he could cancel his preliminary order only under sub-clause 5 of sec. 145 if he was satisfied that no dispute as contemplated by sec. 145 (1) did exist or had existed. No such finding has been recorded by the learned Magistrate. On the contrary his finding under sec. 145 (1) that there was a danger of the breach of peace concerning the land in dispute held the field when he dropped the proceedings. The order was under the circumstances altogether illegal and must be vacated. I accept the reference, set aside the order of the learned Sub-Divisional Magistrate, Khetri dated the 2nd July, 1951 so far it as relates to the dropping of the proceedings under sec. 145. The case is remanded to him for proceeding in accordance with law. .;