- (1.) ON a report by Sherkhan (hereinafter to be referred to as the first party), the Police, Jhunjhunu, made a report that action be taken under sec. 145 Cr.P.C. The Sub -Divisional Magistrate, Jhunjhunu, made a preliminary order under sec. 145 Cr.P.C., and called upon the parties to file their written statements, and produce evidence with respect to their respective possession. Both the parties filed their written statement, and produced evidence. The learned Magistrate, however, did not decide the question of possession, and held that it was doubtful. He consequently attached the property under sec.146 Cr.P.C. Both the parties went in revision against this order, and the learned Additional Sessions Judge, Jhunjhunu, being of opinion that the Magistrate was not justified in not considering the evidence produced by both the parties and giving a decision with respect to possession, has made this reference recommending that the order of the Magistrate be set aside.
(2.) I have heard the learned counsel for the first party, who supports the reference. The counsel for the second party also supports the refe -rence. There is no doubt that the learned Magistrate did not apply his mind to the evidence on the record in order to record a finding as to which of the parties was in possession, It is necessary in a case under sec. 145 Cr.P.C. that every attempt should be made by the Magistrate, on a cereful examination of the evidence produced by the parties, to find which party is in possession. It is not proper for a Magistrate to shirk his duty because he will have to take some pains in deciding this question. Sec. 146 applies only when the Magistrate is unable, on a judicial consideration of the evidence on record, to decide the question of possession.
(3.) THE reference is accepted, the order of the Magistrate dated 18th of May, 1951,. set aside, and the case is sent back to him for decision according to law.;