N.D. TUSHNIAL AND ORS. Vs. ABDUL REZAK AND ORS.

JUDGEMENT

(1.) THESE two references have come up before this Bench of two judges on a reference by a single judge. The main point raised in the two cases on behalf of the opposite parties is that the Additional District Magistrate is not competent to make a reference under Section 435, Criminal Procedure Code.

(2.) THE facts leading to criminal reference No. 18/61 are that on 16th November 1960, one Sunawar Ali, President of Vatir Kapa Gaon Sabha made a petition before the Subdivisional Officer, Hailakandi under Section 145, Criminal Procedure Code to the effect that there was apprehension of breach of the peace between the parties at the time of harvesting of the paddy over the disputed land. The preliminary order was passed by the Magistrate after getting the necessary report from the police. One Gangesh Gore, Sampat Gore and Kampu Pashi made a joint petition praying for including them in the second party as they claimed possession of a portion of the disputed land. They Were allowed to be impleaded as parties. On the 19th December 1960, one Hashmaya and one Bimaya submitted a petition for including them in the second party. This was rejected. Another petition was made by them with the same prayer on the 19th January 1961. This was also rejected. Gangesh, Sampat and Kampoo, however, became second parties Nos. 6, 7 and 8 respectively. The parties filed their affidavits and the Magistrate after consideration of the whole matter held that the first party was in possession over the disputed land at the time of drawing up of the proceeding and was entitled to retain such possession until ousted by due course of law. Against this order a revision was filed by the second party before the Additional District Magistrate. He then by his order dated the 15th May, 1961 referred the matter to this Court for final orders.

(3.) THE main point raised in both these petitions is about the power of. the Additional District Magistrate to refer the matter to this Court.