Sheo Prasad vs State and Others

Mahesh Chandran, J.—This is an application for revision against the order of Additional Sessions Judge, Allahabad confirming the order of SDM Handia, Allahabad, u/s 145, Code of Criminal Procedure. The contention of the learned Counsel for the Applicant is that the Magistrate did not even peruse the affidavits filed by the parties u/s 145, Code of Criminal Procedure. The Magistrate himself says in his judgment that both the parties claimed their possession and led evidence both oral and documentary. Evidently, by oral evidence he means affidavits filed on behalf of the two parties by various persons. Later on, he dealt with the documentary evidence and said in his order that he did not consider it necessary to examine the oral evidence led by the parties. Were again, he evidently means the affidavits filed on behalf of the parties.

Sub-section (4) of Section 145 Code of Criminal Procedure provides that the Magistrate shall without a reference to the merits or the claims of the parties to a right to possess the '' subject of dispute peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the enquiry within a period of two months from the date of the appearance of the parties before him and if possible, decide which of the parties was at the date of the preliminary order in possession of the property. This provision makes it incumbent on the Magistrate to peruse the statements and affidavits also along with the documents filed in the case. If the Magistrate has not done so he has clearly committed an error of law and the case has to go back to the Magistrate concerned for decision'' after perusing the affidavits and documents.

The application is, therefore, allowed, the order of the Magistrate is set aside and the case is sent back to the Magistrate concerned for decision after peruing the statements, documents and affidavits filed in that case.