IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1026 of 2007 BALESHWAR YADAV @ BALESHWAR PRASAD Versus STATE OF BIHAR & ANR ----------- For the Petitioner :- Sri Bajrangi Lal, Advocate For the Opposite party No. 2:- Sri Jai Prakash Verma, Advocate For the State :- Sri Gopesh Kumar, A.P.P. 3. 19.9.2008 This revision has been preferred against the order dated 16th June, 2007 passed by Additional Sessions Judge, 7th, Patna in Criminal Revision No. 558 of 2005, thereby the learned Additional Sessions Judge has set aside the order dated 5.7.2005 passed by Sri P.K. Tarun, Executive Magistrate, Patna in Case No. 585(M) of 1991 under Section 145 of the Cr.P.C. Heard learned counsel for both the parties. It is submitted by the learned counsel for the petitioner that the order in question is wholly bad in law. The court below has not properly considered the scope of Section 145 of the Cr.P.C. It is further submitted that Section 148 Cr.P.C. is enabling provision for local inquiry. The Magistrate is not bound to make local inquiry in each and every case and no order passed by the Magistrate can be set aside on the ground that no local inquiry was made by the Magistrate. The further submission is that paragraph 8 of the impugned order would also go to show that the court below has wrongly held that declaration of possession can only be done by the competent Civil Court and not by the Executive Magistrate. On the other hand, learned counsel appearing for the opposite parties supported the impugned order and submitted that the - 2 - learned Magistrate has wrongly declared the possession of the petitioners without appreciating the evidence adduced by both the parties. Therefore, the learned Additional Sessions Judge has set aside the order of the learned Executive Magistrate. Considered the submissions of the learned counsel for both the parties and perused the impugned order. The grounds for setting aside the order passed by the learned Magistrate have been mentioned in paragraph 8 of the order of the learned Additional Sessions Judge. Two grounds have been mentioned for setting aside the order. Both the grounds are wholly illegal. The first ground is that no local inquiry was made under Section 148 of the Cr.P.C. and therefore, declaration of possession to second party without making local inquiry is not in accordance with law. The second ground is that the Executive Magistrate has not empowered to declare possession under Section 145 of the Cr.P.C. It is needless to say that section 148 of the Cr.P.C. is enabling provision for local inquiry by the Magistrate in a proceeding under Section 145, 146 or 147 of the Cr.P.C. However, it is not mandatory in each and every case. The Magistrate is bound to make local inquiry in each and every case. So far as the provision of section 145 of the Cr.P.C. is concerned, it is specially provided for decision of possession over immovable properties in order to prevent breach of peace between the parties for possession. Sub-section 4 of Section 145 of the Cr.P.C. would make it clear, which runs as follows:- “The Magistrate shall then, without reference to the merits - 3 - or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).” Thus, having regards to the facts and circumstances as well as law mentioned above, it is quite apparent that the order of the court below is illegal and bad in law. Accordingly, this application is allowed and the impugned order is, hereby, set aside. The matter is remitted back to the court below to decide the matter afresh on the materials/evidence, both oral and documentary available, on the record as well as in the light of the observations made above by this court. The matter must be decided within three months of the receipt of this order. DKS/ (Ghanshyam Prasad, J)