- (1.) THIS is an application in revision by Lachmana, Hukma and Ram Chander, hereinafter to be referred to as the second party, against the judgment of the learned Magistrate First Class, Sambhar, dated 26. 3. 1957, in a case under sec. 145 Cr. P. C. started by the opposite party hereinafter to be referred to as the first party.
(2.) PROCEEDINGS under sec. 145 Cr. P. C. were started in the Court of the learned magistrate and a preliminary order under S. 145 (1) was issued on 19. 10. 1956, calling upon the parties to put in their written statements of their respective claims as respects the fact of actual possession of certain plots of land Nos. 984 to 989 in village Kanwarasa (District Jaipur) and also to put in such documents or to adduce by putting affidavits, the evidence of such persons as they relied on in support of such claims. Both the parties filed their written statements, produced documents and filed affidavits. The first party filed affidavits of 15 persons and the second party those of 5 persons. Learned magistrate, on the basis of certain documentary evidence, came to the conclusion that the first party was in possession of the plots in dispute within two months next before the 19th of October, 1957, the date of preliminary order. He consequently ordered that party No. 2 should not interfere with the possession of Party No. 1 of the plots in dispute till they get their rights adjudicated upon by a competent Court. The second party went in revision to the court of the learned Additional District Magistrate, Jaipur District, who, by his order dated 4. 7. 1957, dismissed the application for revision and maintained the order of the first Court. The second party has come in revision to this Court. I have heard Shri D. P. Gupta on behalf of the second party and Shri H. G. Mathur on behalf of the first party. The main stress which has been laid by Mr. Gupta in the course of his arguments, is upon the fact that the learned magistrate's judgment slows that he did not at all take into consideration the affidavits filed by the parties. It was argued that 15 affidavits were filed on behalf of the first party and 5 on behalf of the second party. They form important material on the record and the learned magistrate was not justified in giving his decision without considering the effect of these affidavits. On behalf of the first party, it has been argued by Shri Mathur that although there is no mention in the judgment of the learned magistrate that he had perused the affidavits filed by the parties, yet on the documentary evidence of the second party he was perfectly justified in coming to the conclusion that the first party had been in possession of the plots in dispute within two months next before the preliminary order. It was argued that substantial justice has been done and therefore this Court whould not be justified in setting aside the order of the learned magistrate. I have considered the arguments of both learned counsel. The judgement of the learned magistrate does not show that he took the affidavits of the parties at all into consideration. Mr. Mathur has also not argued that the affidavits have been taken into consideration by the inquiring magistrate. All that has been argued by him is that substantial justice has been done and therefore the order of the inquiring magistrate should not be set aside. Sec. 145, sub-sec. (1) of the Criminal Procedure Code, as amended by Amending Act XXVI of 1955, requires that at the time of the preliminary order, the magistrate should require the parties to file their written statements and to put in such documents or to adduce by putting in affidavits, the evidence of such persons as they rely upon in support of such peruse claims. Sub-sec. (4) lays down that the magistrate shall peruse the statements, documents and affidavits, if any, put in by the parties, hear the parties and conclude the inquiry if possible within two months, and decide the question whether any and which of the parties was, at the date of the order before the order mentioned in sub-sec. (1) at the date of the preliminary order, in possession of the property in dispute. Under sub-sec. (4), therefore, it becomes the duty of the magistrate to peruse the affidavit before deciding the question of possession. The affidavits under the law, as amended by the Act XXVI of 1955, appear to be just as important part of the record as any other evidence. Inquiring Magistrates under sec. 145, therefore are in duty bound to peruse the affidavits and consider their effect. If the affidavits have not been taken notice of, the judgment can not be said to be a judgment in accordance with law. The judgment of the inquiring magistrate does not at all show that he took any of the affidavits into consideration. It may be that after persuing the affidavits and considering the effect of other evidence placed on the record, learned magistrate might have come to the same conclusion to which he has arrived at present, but his judgment ought to have shown that he had considered the affidavits and for reasons given in the statements, the affidavits of one party were worthy of belief and that of other party unworthy of belief. In my opinion, the learned magistrate acted illegally in not taking into consideration the affidavits filed by the parties in deciding the case. His judgment cannot, therefore, be sustained. The application for revision is allowed and the order of the learned magistrate dated 26. 3. 1957, declaring possession of Party No. 1 and prohibiting Party No. 2 from interfering with the possession of Party No. 1 is set aside and the case is sent back to him to decide it in accordance with law and in the light of the observations made above. The learned magistrate shall not allow any additional evidence to be brought on the record. . ;