In Re: Adbud Misser

Sen, J.—This is a reference from the Sessions Judge of Darbhanga.

The petitioner was the first party in a proceeding tinder Section 145, Criminal P.C. His case was that one Raghu Das executed a registered will whereby he devised all his properties to the petitioner including the thakurbari, one of the properties in dispute. After executing the will Raghu Das died and the petitioner obtained Letters of Administration with the will annexed on the 25th February 1926. He had already taken possession of the Thakurbari with the land attached thereto after the death of Raghu Das and he continued in possession after obtaining the Letters of Administration.

It appears that some time in November 1926, an information was lodged by a chaukidar at the Jaley police station that there was an apprehension of a breach of the peace in respect of the possession of the thakurbari. Thereupon, proceedings u/s 144, Criminal P.C. were started and, subsequently, a proceeding u/s 145, Criminal P.C., was started on the 15th January 1927. The learned Magistrate took evidence, heard the arguments of pleaders on both sides, and, after finishing the hearing of the case, held a local inspection on the 13th March 1927. On the 14th March he passed an order holding that the second party was in possession of the property which was the subject-matter of the proceedings.

Several objections were raised before the learned Sessions Judge, amongst others, on the following grounds:

First, that the Magistrate did not properly consider the evidence in his judgment; secondly, that he had not written a proper inspection report; thirdly, that there was no opportunity afforded to the first party to substantiate his allegation at the local inspection that he had been forcibly dispossessed by the second party that very day; and lastly that the proceedings referred to the thakubari situated in village Kamtoul, police station Jaley, and also to the kasht and barhmotar lands etc., appertaining to his said thakurbari. Some of these lands it is said fell outside the Dar, bhanga Sadar Sub-division. In that view it was contended that the proceedings were beyond the jurisdiction of the Sub-divisional Officer in question.

On all these points the learned Sessions Judge makes this reference, recommending that the proceedings be quashed leaving it to the Magistrate to draw up-proper proceedings u/s 145, Criminal P.C. in respect of such land within his jurisdiction as may be found necessary owing to a likelihood of a breach of the peace.

Turning to the order of the learned Magistrate u/s 145, Criminal P.C. I find that there is hardly any discussion whatsoever of the evidence upon which he comes to the conclusion that the second party is in possession. He makes prominent mention of his inspection which he made on the 13th March and also of the fact that in the course of his inspection he found hundreds of people in the asthal who were all in favour of the second party. This can hardly be any ground upon which possession may be found in favour of the second party.

Further, it appears that the mokhtear of the first party mentioned to the learned Magistrate the fact that the first party had been forcibly dispossessed that very day. This matter undoubtedly called for an inquiry and it does not appear that the learned Magistrate paid any attention to it, nor made any inquiry into the matter.

In the circumstances I think the only proper course is to accept the reference and to quash the proceedings.