P L D 1957 Dacca 331 (PLP)

ISMAIL, J.‑

This Reference arises out of the order, dated l st June 1955, of Mr. S. Ahmed, Magistrate, First Class, Jamalpur. There was a section 145 Criminal P. C. proceeding before him. This concerns the southern 13 acre portion of plot No. 21537 and to southern 16 acre portion of plot No. 21743 recorded in Khatian No. 1401/1942 of Mouza Char Pakshimari. A serious breach of the peace was apprehended. The matter was sent to the Police for enquiry and report. On receipt of the report, the second party was restrained under section 144 of the Criminal P. C., and they were directed to show cause. Thereafter section 145, Criminal P. C. proceeding was drawn up against both parties, with regard to these lands, by the Sub‑divisional Officer, Jamalpur, on the 28th February 1955. On the 4th April 1955, both the parties filed written state ments. The second party claimed possession in the disputed portion of the plot No. 21743, and the case was later transfer red to the file of Mr. S. Ahmed, Magistrate First Class, Jamalpur. On the 1st June 1955, 8 witnesses were examined on behalf of the first party and 5 for the second party. One Kabala was proved for the first party, and 2 on behalf of the second party. The learned Magistrate by his order held that the second party was in possession of the disputed land, on the dates of the preliminary order, and declared that they were entitled to such possession until evicted there from in due course of law. The Receiver was directed to make over the possession of the lands with mesne profits, if any, to the second party. Thereafter on 11th July 1955, a petition was filed on behalf of the first party before the Sessions Judge, Mymensingh, under sections 435 and 438 of the Code of Criminal Procedure for Reference to this Court. The Sessions Judge admitted the petition on the 11th July 1955. The matter was transfer red to the file of Mr. M. Idris, Additional Sessions Judge, 1st Court, Mymensingh. After hearing the parties, he, by his letter, dated 20th August 1955, made a Reference to this Court with a recommendation that the said order, dated the 1st June 1955, passed by the learned Magistrate might be set aside, and that the learned Magistrate might be directed to write a fresh order giving a statement of the reasons for his decision after hearing the parties afresh. No one appears in support of the Reference. Mr. Shahabuddin Ahmad, Advocate, appears to oppose the Reference. The order of Mr. S. Ahmed, dated the 1st June 1955, runs as follows: "Perused carefully the statements put in and oral evidence adduced by the parties. All the evidence con sidered unmistakably gravitates towards the fact that the second party has been in possession of the disputed land on the date of the order under section 145 (1), Criminal P. C. "J, therefore, decide that the said party was in possession of the disputed land on the said date, and I declare the second party to be entitled to such possession until evicted there from in due course of law, and I forbid all disturbances of such possession until such eviction. "Further, I direct the Receiver concerned to hand over possession of the disputed land together with its mesne profits, if any, to the second party immediately on his receipt of this order." It can at once be said that it is a stereotyped order, which can be applicable to any case without even knowing the facts of the case and the material points involved therein. In the Reference order the learned Additional Sessions Judge has relied on a Division Bench case of this Court in the matter of Malik Nikari and others, 2nd party petitioners v. Munshi Kaikobad Biswas and others, 1st party‑opposite parties (7 D L R 81). The nature of the order was substantially the same in that case as in the present, and their Lordships held that "the learned Magistrate has not committed to paper what consideration of the evidence has led him to this conclusion, and in the absence of any such discussion of the evidence, it is impossible to uphold his order". He has further relied on a Division Bench case of the Calcutta High Court‑Bhuban Chandra Hazra, 2nd party petitioner v. Nibaran Chandra Santra, 1st party‑opposite party (1). The nature of the order in that case too Was substantially similar to the one before me, and their Lordships after discussing the points raised came to a finding that the order of a stereotyped nature was applicable to any and every case and "obviously does not enable us to understand what in fact the evidence was or to say that the mind of the trying Magistrate had been proprely and sufficiently directed to its consideration". Mr. Shahabuddin distinguishes these two reported cases with the present case and contends that in this case unlike in those, the Magistrate does not simply say "Perused carefully the statement and the oral statements by the parties," but also further says that he considered the nature of the evidence. As a matter of fact there is no basis for making any such Distinction. In any event, this distinction, to my mind, has no substance, and the fact remains that there is nothing in the order to show that the learned Magistrate applied his mind to the evidence, both oral and documentary. He committed nothing on the record to give any idea to this Court Ss to what were the materials which he took into consideration, and what were the lines of his reasoning to come to his decision. It is incumbent on the Magistrate in a section 145 of the Criminal P. C. matter, even though it is not governed by the provisions of section 367 of the Criminal P. C., to give reasons for his decision, and to write an order affording a clear indication that the points urged, and the evidence relied on by the parties, have been duly considered by him. There is nothing in his order to enable this Court, exercising its powers in revision, to form any idea as to the correctness, legality or the propriety of his finding. In this view of the matter the Reference is accepted and the final order of the Magistrate made on the 1st June 1955 is set aside together with the consequential portion thereof. I direct that the case be reopened at the stage of arguments, both the parties be heard on the evidence, oral and documentary, and thereafter orders be passed in accordance with law, giving reasons for his decision. K. B. A. Reference accepted.