ABDUL NOOR AND ANR. Vs. SIRAJ ALI AND ANR.

JUDGEMENT

(1.) THESE two criminal revisions are totally unconnected. But I am dealing with them together, because the same points of law have been raised in both of them. Both the cases arise out of proceedings under Section 145, Cri. P. C. Both the cases were before the sub -divisional Magistrate Shri A. Bhattacherjee and he drew up the proceedings under Section 145 and held the enquiry. In both the cases the lands were attached and Sri. A. Bhattacherjee referred the matters to the Court of the Munsiff Dharmanagar to decide the question as to which party was in possession of the subject -matter on the respective dates of the proceedings. The Munsiff decided the question and sent back the records to the S. D. M. Dharmanagar. But Shri A. Bhattacherjee had by that time ceased to be the S. D. M. Dharmanagar, but continued as a first class Magistrate at Dharmanagar. So he dealt with both the matters instead of the S. D. M. Dharmanagar and he passed the orders in accordance with the findings of the Munsiff. Against the said orders of Shri A. Bhattacherjee the parties affected filed revisions before the Sessions Judge. But the Sessions Judge refused to interfere and the parties have now come to this Court.

(2.) TWO of the points raised in the two revision petitions are the same. It was pointed out in both the cases that Shri A. Bhattacherjee in sending the cases to the Munsiff for decision under Section 146(1), Cri. P. C. simply stated that ho could not ascertain which of the parties was in actual possession of the land that it was only in a case where the Magistrate has applied his mind to the case and was unable to decide as to which of the parties was in possession that he can make a reference under Section 146(1), Cri. P. C. and that if the Magistrate without applying his mind to the case sends it to the Civil Court, it will amount to shirking his duty And that in such a case the reference to the Munsiff would be improper. I am unable to understand how such an argument can be raised by the petitioners at this stage. If the petitioners felt when the Magistrate referred the matters to the Civil Court that the reference was improper on the ground that the Magistrate had not applied his mind, they could have come up in revision at that stage. But they did not do so, evidently because at that stage they felt that a decision on the question of possession by the Munsiff would be more satisfactory to them They took part in the proceedings before the Munsiff Without any objection and let in evidence. It happened that the findings of the Munsiff on the question of possession were against them and the Magistrate had to pass orders in conformity with the decisions of the Munsiff. The present contention is therefore advanced on account of what happened subsequently as a result of the findings by the Munsiff being adverse to petitioners. Such a contention cannot, therefore, be countenanced at this late stage and has to be rejected for that Very reason. While of course the party affected cannot be allowed to raise the contention, it is necessary for me to impress on Magistrates who make such references to the Civil Court that it is their duty to apply their minds to the case and that it is only in cases where the Magistrate is of opinion either that none of the parties was then in such possession or that he is unable to decide as to which of them was in such possession of the subject of dispute that he should make a reference to the Munsiff. Otherwise he will be shirking his duty. No doubt the work of the Magistrate will be made easier by throwing the responsibility on the Civil Court to decide who is in possession and probably the finding by the Civil Court would be a more satisfactory finding. But Sections 145 and 146 Cri. P. C. make it clear that it is the duty of the Magistrate to decide the question of possession and that it is only in the two cases mentioned that the Magistrate can refer the matter to a Civil Court. Now if the Magistrate is to form an opinion he will have to apply his mind to the case. His order must show that he has perused the statements the documents and the affidavits in the case and understood the case of both parties and that he was of opinion either that neither party was in possession or that he was unable to decide as to which of them was in possession. A mere statement that be was unable to ascertain which party was in possession or that it was in the nature of a Civil dispute will not suffice.

(3.) BUT this will not affect the issue as far as the two cases before me are concerned as the petitioners did not take up the matter at that stage but only after the Civil Court had decided the matter against them. So I cannot allow the objection to be raised at this stage.