- (1.) THIS is a reference by the learned Sessions Judge, Jaipur District, Jaipur in a case under sec. 145 Cr. P. C. by which it has been recommended that the order of the Extra Magistrate, Dausa, dated the 31st July, 1953, cancelling the preliminary order dated the 16th May, 1953, be quashed.
(2.) PARTIES have not appeared. I have gone through the order of reference as well as that of the magistrate. I have also perused the explanation given by the magistrate concerned, and also gone through the record of the case, Several dates were fixed in the case for the evidence of the parties after the preliminary order had been passed on 15th May, 1953. One of these was the 7th July, 1953, on which the parties did not appear. On the next date when the magistrate was casual leave, 31st July, 1953, was fixed, but on that date too the parties did not appear. From this the magistrate drew an inference that the parties were not anxious for the case and there existed no breach of the peace any longer. He consequently cancelled his preliminary order dated the 16th May, 1953. An application for revision was filed by Nathu Lal one of the parties in the case and the learned Sessions Judge says that it was wrong for the magistrate to cancel his preliminary order simply on account of the absence of the parties when none of the parties or any other person interested showed that no such dispute as mentioned in sub-sec. (1) of sec 145 existed. In my (opinion (he learned Sessions Judge is perfectly correct in this view. Simply because the parties did not appear it could not be said that it had been shown that no such dispute as is referred to in sub-sec. (1) of sec. 145 exists or had existed. A preliminary order can be cancelled only when it has been shown that the dispute referred to in sub-sec. (1) of sec 145 did not exist or had not existed. The learned magistrate was, therefore, not justified in cancelling his preliminary order. It may be argued as to what should the magistrate do when the parties do not produce their evidence with respect to possession. Of course, there is no provision in sec. 195 Cr. P. C. itself laying down that the proceedings may be dropped when the parties or one of them do not appear. It was held by a division bench of the Patna High Court in the case of Bengali Parida vs. Banchhannidhi Panigrahi (l) that under such circumstances the magistrate may attach the property under sec. 196 because in the absence of the material which would enable him to protect the possession of one or the other of the parties he cannot be able to come to a definite finding as to which party was in possession of the property in dispute on the date of the preliminary order or within two months next before it. In the case of Bejoy Madhub Chowdhury vs. Chandra Nath Chuckerbutty (2) neither party filed written statement or adduced any evidence. The magistrate in the circumstances attached the land in dispute under sec. 1946. It was held that the order was not without jurisdiction. In the present case the learned magistrate has made no order of attachment under sec. 146. It is not necessary for me to say whether the view taken in the above two cases was correct or not. If any such circumstances, as are present in this case, are present in a case under sec. 145 Cr. P. C. it would be for the magistrate concerned to consider whether an order under sec. 146 can be made in such circumstances. Suffice it to say that the present order that has been made by the learned magistrate is illegal and should be set aside. The reference is accepted, the order of the Extra Magistrate, Dausa, dated the 31st July, 1953, cancelling the preliminary order dated the 16th May, 1953, is set aside and the case is sent back for disposal in accordance with law. . ;