State vs Nageshwar Someshwar and Another

V.B. Raju, J.—This is a reference by the Additional District Magistrate. Baroda, u/s 435, Cr. P.C., recommending that the order passed u/s 145, Cr. P.C. by the 2nd Sub-Divisional Magistrate, Baroda, in Criminal Case No. 8 of 1960, holding that one Chatur Shanker was in actual possession of 0-38 Gunthas of land of Survey No. 1106/3 of Padra village and forbiding Nageshwar Someshwar from disturbing that possession until evicted by due course of law, be set aside in view of the fact that in a subsequent case, namely Criminal Case No. 174 of 1960, the Judicial Magistrate, First Class, Padra, decided on 3-10-60 that Chatur Shanker had committed criminal trespass on the field bearing Survey No. 1106/3, which was in the actual possession of Bai Shantaben, the wife of Nageshwar Someshwar. The learned Additional District Magistrate thinks that in view of the order passed by the Judicial Magistrate, First Class, Padra, on 3-10-60, the order passed by the Second Sub-Divisional Magistrate, Baroda, u/s 145, Cr. P.C., on 27-7-60 should be set aside by the High Court.

do not agree with the learned Additional District Magistrate, because if proper order is passed by a Magistrate on the evidence led before him, that order would not cease to be proper because some other Court has later come to a different conclusion on the evidence led before that Court. Mr. Amin, who appears for Nageshwar Someshwar, has stated that there is no other ground for holding that the order passed by the Second Sub-Divisional Magistrate, Baroda, u/s 145, Cr. P.C. is improper. I, therefore, reject this reference.