Shabih Haider vs Rafiqul Hassan and Another

P.K. Jain, J.—List has been revised. None appears for opposite party No. 1.

Heard Shri S.A. Shah, learned Counsel for the revisionist and learned A.G.A. for the State.

In proceedings u/s 145, Code of Criminal Procedure, the City Magistrate vide his judgment and order dated 24.2.83 arrived at the finding that the first party Shabih Haider (revisionist in the present revision) was in possession of the disputed property on the date of the preliminary order and two months next before passing of the preliminary order. The final order was passed by the City Magistrate in conformity of these findings. The opposite party, Rafiqul Hassan preferred criminal revision No. 55 of 1983 against the judgment and order of the City Magistrate which was allowed by the revisional Court vide judgment and order, dated 5.8.83 on the ground that the City Magistrate has relied upon the photostat copies of certain documents and First Information Report which are not admissible in evidence unless proved in accordance with law. The second ground on which the finding of the trial court was set aside was that the learned City Magistrate has not considered the effect of the subsequent events, viz., that the revisionist Rafiqul Hassan took possession of the said house on 24.6.80. The revisional court observed as follows:

The learned City Magistrate, Moradabad, has also not taken into account the subsequent event that the revisionist had forcibly taken possession of the house on 24.6.80 and its effect.

While passing the order of remand, the revisional court directed the City Magistrate that he will also take into account the alleged change of events, that is, alleged taking of possession, by the revisionist on 24.6.80 illegally by force.

In this revision before this Court, it is urged that the observation and direction of the revisional court so far as it related to taking into consideration the alleged change of possession by the revisionist and his taking on unauthorised possession on 24.6.80 are concerned, the same are against the spirit of provisions contained in Section 145, Code of Criminal Procedure.

Learned A.G.A. contends that so far as remand order is concerned, it has to be sustained on the ground that while arriving at the finding of possession in favour of present revisionist the City Magistrate was influenced by the evidence which was inadmissible.

Having considered the rival arguments, I find, that so far as remand order is concerned, it cannot be disturbed for the reason that while deciding the question of actual physical possession the City Magistrate had taken into consideration the evidence which was not admissible. However, the observation of the learned Sessions Judge, who decided the revision, that the learned City Magistrate has not taken into account the subsequent event of forcible possession by the revisionist and consequent direction by the revisional court that the effect that change in the circumstances shall also be taken into consideration by the trial court cannot be sustained.

In the result, the revision is dismissed subject to modification that the Magistrate concerned while deciding the question of possession on the date of preliminary order and two months next before passing of the preliminary order shall not take into consideration the events subsequent to the passing of the preliminary order nor any finding shall be given by him in this regard. Stay order dated 15.3.85 shall stay discharged.