A.R. Bakshi J.
1. This matter arises out of proceedings under Section 145 of the Code of Criminal Procedure between the petitioner and respondent No. 1 before the Sub-Divisional Magistrate, Dholka, respondent No. 2, decided by him on 24th April 1967. This order of respondent No. 2 was confirmed on 20th June 1967 by the learned District Magistrate, Ahmedabad, respondent No. 3. These orders are challenged and sought to be revised by this petition under Article 227 of the Constitution of India and Sections 561A and 439 of the Code of Criminal Procedure. The lands in dispute are situated at Dholka and it is the case of the petitioner that she was in possession of the lands which was sought to be disturbed by respondent No. 1 whose case on the other hand was that he was in actual physical possession of the lands. It appears that some litigation was going on between the petitioner and respondent No. 1 and there were disputes between them in respect of the lands. The petitioner gave an application to the police in March 1967 that she had apprehension that respondent No. 1 was likely to cause harm and danger to life and her property and that steps should be immediately taken under Section 145 of the Code of Criminal Procedure. A report dated 1st April 1967 was made by the police to the Sub-Divisional Magistrate, who, pursuant to the report, issued a notice dated 10th April 1967 calling upon the petitioner and respondent No. 1 to appear before the Court and submit written statements as regards the actual possession of the lands and to produce necessary documents and affidavits of witnesses in support of their claims. Some documents and several affidavits were filed by the parties before the Sub-Divisional Magistrate and after a hearing, the Sub-Divisional Magistrate came to the conclusion-that respondent No. 1's claim to actual possession of the disputed lands was genuine and declared him to be entitled to retain the lands unless possession was taken over from him by due process of law. This Order was passed by the learned Sub-Divisional Magistrate on 24th April 1967 and a Revision Application against that order was dismissed on 20th June 1967 by the learned District Magistrate, Ahmedabad.
2. The first ground on which Mr. Chhatrapati, learned advocate for the petitioner, challenged the validity of the order passed by the learned Sub-Divisional Magistrate was that the learned Magistrate had not passed any order in writing stating the grounds of his satisfaction about the existence of a dispute concerning any land which was likely to cause a breach of peace. It was contended that the passing of such an order was obligatory before proceedings could be started under Section 145(1) of the Code of Criminal Procedure. Now what appears to have happened is that on receipt of the report from the police, the learned Sub-Divisional Magistrate made an endorsement to the following effect:
'Notice under Section 145 of the Criminal Procedure Code.
(1) Jenatbibi, d/o Husseinali Niyazkhan of Darbarwad, Dholka.
(2) Kassambhai Noorbhai, Moti-Volwad, Dholka,
This is to inform you that in view of the report dated 1-4-1967 of the police Sub-Inspector, Dholka, I am satisfied that there has arisen a dispute between you with regard to the lands bearing S. Nos. 1482, 1483, 1484, 1485 and 1486 situate on the outskirts of Monje Dholka and that the said dispute has reached such a stage as may prove prejudical to public peace and tranquility. Therefore, in exercise of powers vested in me under Section 145 of the Criminal Procedure Code, I hereby order you to appear before this Court personally or through lawyer at 11. 00 hours on the date 1 4467 and submit your written statements to the effect that the actual possession of the said lands is with you and to produce necessary documents and affidavits of witnesses in support of your claims.
and in terms of this, notices were served on the petitioner and respondent No. 1. Thus there is no separate order recorded in the form of a formal order but the document is a composite one expressing the order and recording the contents of the notice to be served on the parties. The endorsement referred to above mentions that the Sub-Divisional Magistrate was satisfied that there had arisen a dispute between the petitioner and respondent No. 1 with regard to the lands and that the said dispute had reached such a stage as might prove prejudicial to public peace and tranquility. That document also indicates that the satisfaction was on account of the report of the police dated 1st April 1967. Pursuant to the notice the parties had appeared and understood the nature of the proceedings that were initiated. They led evidence and never challenged the fact of the existence of a dispute such as is referred to in Sub-section (1) of Section 145. The petitioner had herself made a complaint that the respondent No. 1 was likely to use force and there was danger to property and life and that, therefore, proceedings under Section 145 of the Code of Criminal Procedure should be started against the respondent No. 1 and in the application to the police, she makes a clear reference to Section 145 of the Code of Criminal Procedure, It is no doubt desirable that the Sub-Divisional Magistrate, before initiating proceedings under Section 145 should record a clear order which would satisfy the requirements of Sub-section (1) of Section 145 and should also state the grounds of his satisfaction in the order. It has. to be remembered that what the law provides has to be strictly followed, but the question is whether in the circumstances as they obtain in the case before us, the proceedings that followed and the final order that was passed would become a nullity and of no effect because a separate formal order had not been passed. As we have seen, when the report from the police was received, an endorsement in the form of a notice was made in pursuance of the police report and that was a composite document incorporating the satisfaction and the notice and the parties had sufficient notice of the nature of the proceedings that were initiated against them. The purpose of taking a proceeding under Sub-section (1) of Section 145 is to make an emergent order to prevent an immediately apprehended breach of peace and a mere omission to record a formal and separate order containing the grounds and circumstances aforesaid would not invalidate the final order that is passed after recording the evidence led by the parties and after hearing them if it appears that in substance the learned Magistrate had satisfied himself and had given the reason for such satisfaction as required by. Sub-section (1) of Section 145. In the case before us, as we have already seen, there was a composite document in the form of a notice which contained not only the satisfaction of the learned Magistrate but also the reason for such satisfaction. It clearly states that the order was passed pursuant to and on account of the report of the Police Sub-Inspector dated 1st April 1967. Further, the parties also understood the nature of the proceedings that were started against them and no prejudice has been shown to have resulted on account of an omission to record a formal separate order which only appears to be a mere irregularity not affecting the validity of the final order. Mr. Chhatrapati had referred to some authorities in support of his argument and had urged that such an omission would deprive the learned Magistrate of his jurisdiction to act under Section 145(1) and, therefore, the final order would be invalid even if parties had not objected and had led evidence on the merits of the case. It was urged that power was given to do a thing in a certain way and that it must be done in that particular manner and no other. The jurisdiction of the Magistrate to act under Section 145, however, depends on and is acquired on account of two facts: (1) the existence of a dispute concerning any land within the local limits of his jurisdiction; and (2) his satisfaction from some information, whether it is a police report or any other information, that such dispute was likely to cause a breach of peace. If these two facts existed and these two conditions were fulfilled, the Magistrate was seized of the dispute and would acquire jurisdiction under Section 145. When once the jurisdiction was properly invested in the Magistrate, he would have the power to act under Section 145 and adopt the procedure mentioned in the section and pass whatever order he deemed proper according to the provisions of Section 145. In our judgment, the mere omission to record a formal separate order in the circumstances of this case would not amount to such an infirmity as would invalidate the subsequent proceedings and the final order that was passed by the learned Magistrate.
3. It was urged by Mr. Chhatrapati that there were no grounds mentioned in the notice and a mere reference to a police report would not suffice to make the order valid, when in fact the police report did not disclose any material indicating the existence of a dispute likely to cause a breach of peace. If we look at the police report, it does refer to the dispute between the parties and states that if no action is taken, there was a likelihood of commission of serious offences and murders. It also refers to some criminal proceedings against some of the parties and the necessity for immediate action under Section 145 of the Code of Criminal Procedure. The petitioner herself had given an application to the police to take action under Section 145 making allegations of apprehension of danger to life and property and on considering the application of the petitioner which was before the police, confirmed by her statement, the police had made the report pursuant to which the learned Magistrate acted under Section 145(1). It could not, therefore, be said that there was no material before the police on the basis of which a report could be made and it could not also be said that there was no material before the learned Magistrate on the basis of which he could pass an order under Section 145(1). For the reasons aforesaid the proceedings that were started by the learned Sub-Divisional Magistrate and the proceedings subsequent thereto could not be held to be invalid and the contention of Mr. Chhatrapati that all subsequent proceedings must be held to be invalid must be rejected.
4. It was next contended that the learned Sub-Divisional Magistrate had not focussed his mind to find out which party was in possession on the date relevant under Section 145 and that all the relevant and material evidence that was on the record had not been considered by the learned Magistrate before passing the final order. The learned Government Pleader, however, urged that it was not necessary at all to give reasons for arriving at a finding as regards the question of possession in the final order and that it was not necessary to refer to or discuss the evidence led by any of the parties to the proceedings. It was urged that neither under Article 227 nor under Section 439 of the Code of Criminal Procedure interference could legally be made in cases where the Magistrate failed to refer to the evidence of parties and where there was no failure of justice. It was urged that the proceedings in their very nature were meant to meet an emergent situation and the very purpose of the section would be defeated if the order was set aside after a period of a year and a half. It was also pointed out that the defect, if any. in the final order of the learned Sub-Divisional Magistrate must be deemed to have been cured in revision by the decision of the learned District Magistrate who had confirmed the finding of the learned Sub-Divisional Magistrate after consideration of all the materials on the record. Mr. Hathi appearing on behalf of respondent No. 1 also urged that the proceedings under Section 145 were in the nature of summary proceedings and that it was not necessary to give any reasons for the final order and that in any event it was not necessary to discuss in the final order the evidence that was led by a party to the proceedings.
5. Proceedings under Section 145 of the Code of Criminal Procedure are not meant for deciding the title or the right to possession of a party. In proceedings under Section 145 the Magistrate does not purport to' decide the question of title and that question can be decided in due course of law. The foundation of the jurisdiction of the Magistrate under Section 145 is on the apprehension of the breach of peace, and with that purpose he makes an order irrespective of the rights of the parties, and the order that the Magistrate makes would be subject to the order that would be passed by a decree of a civil Court. Vide Bhinka v. Charan Singh : 1959CriLJ1223 . It is true that the provisions of Section 145 are purported to meet an emergent situation where there is an apprehension of the breach of the peace and that section, therefore, provides an expeditious remedy and a procedure suitable for that purpose. In that sense the proceedings are no doubt of a summary nature. It is also true that proceedings under Section 145 should not be looked at from a technical aspect and it has to be borne in mind that parties have an alternative remedy by way of a suit. It is also true, as was urged by the learned Government Pleader, that revisional jurisdiction or powers under Article 227 should be utilised sparingly and that these powers were not akin to appellate powers and could be resorted to in cases of failure of jurisdiction and in aid of justice where there was a case of non-application of the mind by the authority passing the order. Bearing these principles in mind, let us see what is the position in the case before us.
6. The order passed by the learned Sub-Divisional Magistrate first refers to a civil proceeding, namely, Civil Suit No. 4 of 1964 in the Court of Narol at Ahmedabad and in which the Court had granted an interim injunction which was subsequently vacated holding that the possession of the lands was of respondent No. 1. It appears that that order vacating the interim injunction was passed on 23rd July 1964. The order of the learned Sub-Divisional Magistrate then refers to the appeal filed by the petitioner against the order referred to above being Appeal No. 36 of 1964 which was dismissed on 16th December 1964. Thereafter the learned Sub-Divisional Magistrate has observed that the present petitioner had produced no evidence whatsoever showing that after the said decisions of the civil Court, the possession had come to her. Thereafter the Record of Rights and the affidavit of one Abdulkarim Rasoolbhai have been referred to as also a statement made by the petitioner before the Talati on 17th January 1967. This is how the learned Sub-Divisional Magistrate has referred to these matters in his order:
The opponent No. 1 has produced no evidence whatsoever showing that after the said decisions of the civil Court, the possession had come to her. In the Record of Rights the occupant of S. Nos. 1482, 1483 is shown as Abdulkarim Rasoolbhai who has stated in his affidavit that since 1956 these numbers are being cultivated by Kassambhai Noorbhai and that the actual possession of the said numbers is of Kassambhai. Janabbibi has made a statement before the Talati on date 17-1-1967 that Kassambhai was going to take police steps on 6-12-1966. However, the opponent No. 1 has made no mention of the said fact in her reply. The certificates dated 18-4-1967 and 15-4-1967 of the extension officer and the notes dated 30-12-1966, 19-1-1967 and 5-4-1967 of the Gram Sevak in the visit book go to show that the possession of the land in question is of the opponent No. 2 Kassambhai Noorbhai.
It appears that the affidavit of one Abdulkarim Rasoolbhai made on behalf of respondent No. 1 has been referred to by the learned Sub-Divisional Magistrate; but no where has the evidence of the affidavits led> by the petitioner referred to and discussed in the order. It is undisputed, as it appears from the record, that more than ten affidavits were filed by the petitioner. The learned Government Pleader contended that in view of the civil suit and the statement before the Talati and the other evidence, the question as regards possession was so clear that the affidavits filed by the respondent No. 1 were of no value and required no discussion. It may be that even after the consideration of the affidavits, the learned Sub-Divisional Magistrate would have come to the same decision. But that is not the question. The real question is that the evidence of the petitioner should also be considered before the final order was passed. It was urged by the learned Government Pleader on the authority of Shivabhai v. Ravjibhai (1965) VI G.L.R. 14, that no reasons were necessary to be given in an order passed under Section 145(4) of the Code of Criminal Procedure and that if affidavits were not referred to, it merely amounted to giving insufficient reasons and would, therefore, not invalidate the final order that was passed. In the case mentioned above it has been observed that merely from the use of the word 'decide' in Sub-section (4) of Section 145 it cannot be inferred that the Legislature necessarily implied that reasons should be adduced in support of the decision and that all that was implied was that the person passing the order shall indicate the process of considering the evidence and shall consider the effect of the evidence before he comes to a decision. Sub-clause (4) of Section 145 is as under:
4. The Magistrate shall then, without reference to the merits or the claims of any of such 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 inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject;
Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein:
Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:
Provided also that,--if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
It will be seen that the sub-section enjoins upon the Magistrate to peruse statements, documents and affidavits put in by the parties and thereafter decide the question of possession after hearing them. For the purposes of a proceeding under Section 145, therefore, affidavits have been given the status of evidence that has to be considered by the Magistrate acting under that section. The section requires firstly, a perusal, that is, a scrutiny or an examination, of the statements, documents and affidavits produced by parties and after considering those pieces of evidence, the Magistrate is required to come to a decision as regards the question of possession. Perusal of the materials before the Magistrate cannot mean a perfunctory look at the evidence. The question that arises for decision under Section 145 is no doubt limited to the question of possession at a particular date and it does not relate to title or the rights of the parties. That would mean that the other party who has not been held to be in possession would have to take resort to civil proceedings and till the question of title was finally decided in a Court of law, the party in whose favour an order under Section 145 has been passed will hold on the possession of the lands in dispute. Such a question cannot be considered to be an unimportant one and the section provides that such a question should be decided after due consideration of the materials produced before him. The question relates to the possession of immovable property and does affect the parties who claim to be entitled to possession of the lands in dispute. It cannot, therefore, be said that the proceedings under Section 145 are merely of an administrative nature not involving any decision as regards the rights of the parties and that, therefore, it would not be obligatory on the Court to record reasons for the finding which the Court arrives at on the question of possession. The section necessarily implies a dispute and that would mean that two parties have each a claim to the possession of the disputed property. A notice is necessary to be given to the parties and evidence is also required to be recorded but for the purpose of expeditious disposal, affidavits are also permitted to be filed. But that would not mean that the proceedings under Section 145 are merely of an administrative nature. The parties are entitled to place on record their evidence and their affidavits and the Court is bound to consider whatever the parties produce before it and then come to its own decision. All this would mean that the proceedings are of a judicial nature and the Magistrate passing the final order under Section 145 would be required to weigh the evidence including the affidavits produced by the parties and decide the question of possession according to law. Although therefore, Section 145 provides an expeditious remedy, still the proceedings under that section would be of a judicial nature and the final order that is passed must show an application of the mind by the Magistrate on the materials referred to in Sub-section (4) of Section 145, that is, statements, documents and affidavits.
7. In Raghunath v. Purna Chandra : AIR1966Ori170 , the following observations have been made at page 172:
If the evidence of Nilamani Sahu and the documents filed ty the Secretary of the Panchayat, are ignored, there is no other evidence on behalf of the second party. The evidence on behalf of the first party consists in four affidavits of the party and witnesses having lands in vicinity fully supporting their case as to how they have been exercising right of irrigation and fishery ever since the time of their fore-fathers. The learned Magistrate again committed an illegality in merely referring tO the affidavit evidence without fully discussing the same. In 31 Cut. L.T. 251 : A.I.R. 1965 Orissa 208 Murali v. Purusottam, this Court held that after amendment, the affidavit has substituted oral evidence except in cases where the Magistrate may summon and examine'a person, whose affidavit has been put in, to test the correctness of the facts mentioned therein Where the affidavits substitute evidence, it is the bounden duty of the Magistrate to examine carefully the affidavits of each deponent. He must give clear reasons for accepting or rejecting the affidavits as is done in weighing oral evidence. The order of the Magistrate must indicate that he had applied his mind to the affidavits. No hard and fast rule can be laid down as to how the affidavits are to be assessed. But all that is to be emphasised is that the affidavits cannot' be dealt in perfunctory manner by general observations. They should be weighed as oral evidence was being done prior to the amendment.
The case reported in L.L. Singh v. N.L. Singh A.I.R. 1967 Manipur 23 (1967 Cr. L.J. 1342) to which our attention was drawn also contains observations which refer to some of the relevant authorities on the subject. At page 1346 of the report it has been observed:
9. But, the learned Magistrate did not peruse the affidavits also, as required by the mandatory provisions of Sub-section (4) of Section 145 Cr. P.C. In paragraph 5 he simply disposed of the affidavits in one sentence by stating that 'the six affidavits filed by the petitioners and the five affidavits filed by the respondents herein, no doubt, go to support the claims of the respective parties, but that the documents are important. 'He relied on the provisions of Section 92 of the Indian Evidence Act in support of his reasoning. Probably, he meant that as the affidavits contain oral averments, the written documents are more important than the affidavits. Section 92 of the Indian Evidence Act has no application to the facts of the case and is irrelevant. The word 'peruse' has got a definite meaning. It means 'to examine in detail or to revise or to read attentively or critically', vide Chambers' Twentieth Century Dictionary 1958 reprint.
Various High Courts in India also held likewise. In Venkata Subba Reddly v. State of Andhra Pradesh : AIR1960AP500 , the documents were referred to by the S.D.M. But, he ignored the affidavits, which constituted the material evidence in the case. He did not take them into consideration. It Was held that ex facie the order was improper and that there was miscarriage of justice, because the Magistrate did not take into consideration the affidavits filed by the parties. In Rudra Singh v. Bimla Devi : AIR1960Pat505 , it was held that although the amendment of Section 145 by Act XXVI of 1955 has done away with the necessity of examining witnesses in Court and has provided that the Magistrate can come to his decision on the question of possession on the basis of affidavits filed on behalf of the parties, the Magistrate should remember that those affidavits must be considered because they take the place of oral evidence, and that they should not be brushed a side on the ground that there is oath against oath or that the affidavits cannot displace the weight of the documentary evidence. It was also held that the Magistrate should consider the affidavits in the same way in which oral evidence is considered and that he should give his reasons for rejecting the statements made in each affidavit.
In Mt. Sarfi v. Mt. Sitgo : AIR1962Pat253 , the Magistrate did not examine each affidavit. He did not give his reasons either for acceptance or for rejection of the same. He referred to the affidavits in one lump and simply stated that the parties filed a number of documents and that, therefore, he rejected the affidavits filed by the second party and accepted those of the first party, [t was held that the Magistrate should peruse each affidavit. It was also held that he should at least make it apparent that he has applied his mind to the affidavits. The Kerala High Court expressed the same view in A. Narayanan Kutty v. Sekhar Menon : AIR1964Ker308 . The view of the Allahabad High Court is also the same vide Raghubir Singh v. Gram Samaj Kotra : AIR1964All394 . It was further held in that case that the Magistrate should not decide the question of title and, on that basis the question of possession. This Court also held likewise in Criminal Revn. No. 4 of 1965 (Manipur). So, it is apparent that in the present case the Magistrate did not 'peruse the affidavits filed by the parties, that he did not apply his mind to them and that he did not consider the oral evidence on record. As such, his order is erroneous, materially irregular and is liable to be set aside.
10. The contention of the learned counsel for the respondents, however, is that this Court as a Court of Revision should not enter into discussion of the facts of the case and that, in the absence of gross irregularities, the order of the learned S.D.M. should not be set aside. He relied on the following decisions. In Kulada Kinkar Roy v. Danesh Mir. (1906) 1. L.R. 33 Cal. 33 (F.B.), it was held that the High Court should not ordinarily examine whether the grounds on which the Magistrate was satisfied as to the likelihood of a breach of the peace afford a reasonable foundation for his conclusion. It was also held that the Court will not interfere unless it' is satisfied that the parties seeking interference have been prejudiced by the proceedings in the Courts below. In Nurul Hasan v. Mst. Majidan : AIR1944All210 , it was held that, unless the Magistrate has acted with gross irregularity, the High Court could not interfere in revision with an order passed by the Magistrate under Section 145(1) Cr. P.C.
The words used in the sub-section are clear to indicate that all the materials including the affidavits filed by the parties must be taken into consideration before a final conclusion was reached by the Magistrate acting under Section 145. It would not be open to the learned Magistrate to consider only a part of the evidence of one party and to ignore or brush aside the statement or affidavits produced by the other side. It has to be remembered that under this sub-section the affidavits substitute evidence and, therefore, what relevant material is contained in the affidavits would require to be assessed and either accepted or rejected. In other words all this evidence would require to be weighed and the order of the Magistrate must indicate that he had weighed this evidence and had applied his mind to the material and relevant affidavits filed by both the parties it is true that no hard and fast rule can be laid down as to how the affidavits and the other evidence have to be referred to, discussed and assessed. That would depend upon the facts of each case, the nature and the importance of the affidavits and the evidence placed on the record. In given cases it may not be necessary to discuss all these materials in detail. It may be that in some cases some affidavits may not at all be relating to the question at issue and may not require a detailed examination but what is necessary is that the material affidavits cannot be ignored or dealt with in a perfunctory manner but they should be considered and weighed as other oral evidence. As stated earlier it has to be remembered that the proceedings started under Section 145 are judicial proceedings and the order that would be produced under Section 145 would be a judicial order and, therefore, such an order must have been passed after a consideration and assessment of the relevant materials on the record relating to the question at issue before the Court. It would, therefore, 'Jnot only be necessary to take the affidavits filed by a party on the record but it would also be necessary to consider and weigh them and the final order that is passed after hearing the parties should at least indicate that the Court had applied its mind on the materials and the affidavits that were placed before it. The order must, therefore, contain reasons for the conclusion reached by the Court and it would not be permissible to ignore the evidence of the affidavits filed by a party or to omit from consideration such evidence or affidavits while arriving at the final decision. The words 'peruse' and 'decide' clearly show that each material evidence produced by a party has to be examined and a decision taken thereon after a due consideration of all the materials before the Court and such a position must be capable of being inferred or judged from the order itself. In so far as the decision in (1965) VI G.L.R. 14 lays down a contrary principle, we are, with respect, not in agreement with what has been observed by the learned Judge in that decision. The learned Government Pleader as also Mr. Hathi had drawn our attention to a decision of the Full Bench of this Court in Special Civil Application No. 433 of 1964 decided on 4th/5th April 1968. But we do not see how the observations in that decision would help the submission of the learned Government Pleader or the submissions of Mr. Hathi. In that case the question was; whether an administrative officer discharging quasi-judicial functions was bound to give reasons in support of the order he made. After a discussion of authorities the Full Bench held that a conciliation officer exercising quasi-judicial functions under Section 33(2)(b) of the Industrial Disputes Act, 1947 was bound to make a speaking order or, in other words, reasons must be stated on the face of the order. In the case before us not only the proceedings under Section 145 were judicial proceedings but the very words of Sub-clause (4) of Section 145 clearly show that the learned Magistrate was bound to consider all the relevant affidavits that were placed on the record by the parties. In the case before us although more than ten affidavits were filed by the petitioner, none of them has been considered nor has the effect of those affidavits been taken into consideration. There is no indication in the order that the learned Magistrate had at the time when he passed the final order applied his mind on the evidence and the affidavits produced by the petitioner. We are, therefore, of the view that the requirements of Sub-section (4) of Section 145 have not been complied with by the learned Magistrate while making the final order under Section 145. The order that has been passed by the learned District Magistrate in revision also does not discuss the relevant affidavits filed by the petitioner. It does appear from the order that an argument was made before the learned District Magistrate that the learned Sub-Divisional Magistrate had totally ignored the revenue record and other evidence produced by the petitioner. But the learned District Magistrate has at the end of the order merely observed that:
Considering all these evidence and other affidavits placed on record it cannot be said that the S.D.M. has erred in coming to the conclusion that the respondent was in possession of the land on the material date.
Now it has to be remembered that the evidence and the affidavits produced by the petitioner were not considered by the learned Sub-Divisional Magistrate. In making a passing reference, therefore, to these affidavits, it could not be said that the learned District Magistrate had appropriately weighed the affidavits filed by the petitioner. A mere passing reference to the affidavits in general particularly when these affidavits have not been considered by the learned Sub-Divisional Magistrate would not mean that the initial infirmity in the order of the Sub-Divisional Magistrate was cured. In proceedings under Section 145 of the Code of Criminal Procedure panics arc entitled to produce their evidence and to file affidavits and these affidavits have been given the status of evidence and it is the right of the parties that such evidence should be considered and weighed by the Court before a final decision is reached. If, therefore, such evidence is not considered or not weighed, it would mean that the Court passing the order had not appropriately applied its mind on the question before it as required by the section and itst order would, for that reason, be liable to be set aside. In these circumstances a mere passing reference in the order of the learned District Magistrate would not cure the infirmity that attached itself to the order of the learned Sub-Divisional Magistrate.
8. Mr. Chhatrapati had contended that the learned Magistrate should not have taken proceedings under Section 145 of the Code of Criminal Procedure but at best should have proceeded under Section 107 and that in the circum stances of the case, it was not open to the learned Magistrate to pass an order under Section 145. We do not find any substance in this argument. Whenever the requirements of Section 145(1) are fulfilled and when the circumstances mentioned therein exist, the Magistrate would be justified in acting under that section and in proceeding to pass a final order after the evidedce of the parties has been taken on the record and after the parties have been heard. Mr. Chhatrapati also contended that the order as regards possession could not be made in view of Explanation 1 to Sub-section (6) of Section 2 of the Bombay Tenancy and Agricultural Lands Act, 1948, which permits a widow to cultivate the land through servants or by hired labour or through tenants and that the widow would be deemed to be in possession of the agricultural lands as if she was culti vating personally those lands. So far as Section 145 of the Code of Criminal Procedure is concerned, that section is concerned with the physical possession of a party at the date relevant under the section and, therefore, the Explanation 1 to Sub-clause (6) of Section 2 of the Bombay Tenancy and Agricultural Lands Act would hardly be relevant for consideration when the Magistrate is holding proceedings under Section 145 of the Code of Criminal Procedure. This contention of Mr. Chhatrapati cannot, there fore, be accepted.
9. For the reasons aforesaid, we are of the view that the learned Sub-Divisional Magistrate had not applied his mind while passing the order dated 24th April 1967 in that the learned Magistrate has not con sidered the evidence and the affidavits produced by the petitioner. The order passed by the learned Sub-Divisional Magistrate does not show that the evidence and the affidavits produced by the petitioner were considered and weighed as required by sub-section Section (4) of Section 145. The same remarks would, for the reasons already given, apply to the order passed by the learned District Magistrate on 20th June 1967 in the Revision Application preferred by the petitioner before him.
10. We, therefore, set aside both the orders, that is, the order of the learned Sub-Divisional Magistrate, Dholka, dated 24th April 1967 and and the order of the learned District Magistrate, Ahmedabad, dated 20th June. 1967 and send the papers and the proceedings back to the learned Sub-Divisional Magistrate for being dealt with according to law. The learned Sub-Divisional Magistrate will fix a date of hearing of the arguments of the parties or their advocates and after hearing the arguments and considering all the relevant evidence, documents, statements and affidavits already placed on record, will give a decision according to law. We make it clear that we must not be understood to have expressed any opinion on the merits of the case and the impugned orders are set aside only for the reasons stated above and the matter is sent back for a fresh hearing of arguments regarding the evidence, documents, statements and affidavits already placed on the record and for a decision according to law after a consideration of all the relevant materials that have already been placed on record. Since there is a nonapplication of the mind by the Court for the reasons already stated, the impugned orders could be set aside under Section 439 of the Code of Criminal Procedure as well as under Article 227 of the Constitution of India.
11. Rule is made absolute in the above terms with no order as to costs.