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Revision No. 423 of 1960, decided on 4th August 1960.

S. 146 read with section 367‑Voluminous evidence on record ‑Magistrate's finding that he was unable to satisfy himself as to who was in actual posses sion, arrived at without any attempt at assessing evidence‑Magistrate's order attaching property set aside.

Lachmi Ojha v. Birja Misser and others 24 C L J 616 fol.

Farid Ahmed for Petitioners.

Ahmad Sobhan for Opposite‑Parties.

This rule is directed against the judgment and order of Mr. M. Zaman, Additional District Magistrate, Chittagong dated the 19th April 1960, rejecting the motion of the petitioners against the judgment and order of fir. M. R. Choudhury, Additional S. D. O. and Magistrate first class of Cox's Bazar dated the 19th Match 1960, in a proceeding under section 145, Cr. P. C. and' ordering that the disputed land should remain attached under section 146 (1), Cr. P. C. until a competent Court has determined the rights of the partes thereto or the person entitled to possession thereof.

2. The petitioners were second parties in the proceeding under section 145, Cr. P. C. at the instance of the opposite‑parties who figured as first parties. The police submitted report on 15‑10‑57 alleging apprehension of breach of peace over the possession of several landed properties. On 28‑10‑57 the proceeding was drawn up by the learned Magistrate, Cox's Bazar. Thereafter the parties entered appearance and submitted written statements with regard to their claims.

3. Mr. Farid Ahmad, the learned Advocate for the peti tioners has submitted that the first parties confined their claim with respect to item 12 which covered area of 3.52 decimals of land out of which they claimed a specific portion in the northern side amounting to x.92 acres only; that the rest of the land should have been at any rate excluded from the attachment. It appears that as many as 8 witnesses were produced by the parties and as many as 10 rent receipts were also produced.

4. On the side, of the second parties petitioners seven witnesses according to Mr. Farid Ahmad, were examined and 75 rent receipts were produced The learned Magistrate, it seems, has by . . .mistake stated the witnesses of the second parties to be 9 in numbers. This according to Mr. Farid Ahmad, shows that the learned Magistrate leas not applied his mind properly to the case.

5. Mr. Farid Ahmad has read out section 4 of the Criminal Procedure Code, according to which, it is mandatory upon the learned Magistrate to consider the effect of the evidence. Mr Ahmad has also taken me through the learned Magistrate's rather short judgment considering the volume of evidence and documents involved in the case and has made the grievance that the learned Magistrate has not applied his mind to the evidence in the case or the documents: that he has not discussed and weighed the evidence at all,

6. Ms. Ahmad has in support cited the decision in Lachmi Ojha v. Birja Misser and others (22CLJ616), in which it was held that in passing an order under section 146, Criminal Procedure Code, 1898 a general re‑mark made by the Magistrate that the oral evidence is not reliable; without referring to it with and without giving any reason, is not a disposal of the evidence upon the record and it amounts to a refusal to exercise the jurisdiction vested in him by law.

7. Mr. Ahmad has also cited the decision in kailash Behari Lal v. Jai Narain Rai and others (21 CLJ 601), of the same High Court in which it was held that where in a proceeding under section 145 of the Criminal .Procedure Code a Magistrate does not consider both the oral and documentary evidence he fails to exercise his jurisdiction, and his order is liable to be set aside.

8. The impression created by going through the judgment is that the learned Magistrate rather took fright at the magnitude of the case, the volume of evidence both oral and documentary being very great. There does not appear any discussion or weigh ing of evidence except mere statement like. "I have carefully gone through the documents of both the parties and have also consi dered the merits and demerits of the oral evidence of both the parties. Many things can be said for and against the documentary as well as oral evidence of both the parties. The case appears to be too complicated to arrive at a definite conclusion in respect of actual possession in a proceeding under section 145, Cr. P. C. From the evidence on record I am unable to satisfy myself as to which of the two parties was in actual possession at the time of institution of the proceeding."

9. Reading the judgment as a whole it appears that the learn ed Magistrate has kept himself on the surface all the time and has used the literal language of section 146, Cr. P. C. to justify his order. There is not even an attempt for discussion except the general reference to the evidence in the case.

10. Mr. Ahmad Sobhan, the learned Advocate for the opposite‑parties contended that those statements of the learned Magistrate really meant that the learned Magistrate went deep into the evidence and weighed the effect of the evidence.

11. I, for myself, fail to see that there was any weighing or discussion of the evidence in the case.

12. The Additional District Magistrate when confronted with the motion disposed of the same by saying that the learned Magis trate came to his conclusion after discussing and weighing the evidence of both the sides, which is wrong.

The mere fact that vast properties and great volume of evidence are involved in the case does not exonerate a Magistrate from himself trying to assess and examine the evidence to the best of his abilities in the facts and circumstances of the case.

13. The position being as above, the attachment order of the learned Magistrate cannot be upheld.

The Rules is, therefore, made absolute and the order of the learned Magistrate attaching the properties is hereby set aside. The learned Magistrate, would be at liberty to start proceeding under section 145, Cr. P. C. in case of danger.

A. H.

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