JUDGMENT - Datar, J.

(1) This is a reference made by the Additional District Magistrate of Amravati for setting aside the orders passed by the Sub-Divisional Magistrate in a proceeding under Section 145, Criminal Procedure Code, and for remanding the case to the Sub-Divisional Magistrate for passing fresh orders on the basis that the preliminary order, though passed on 1-10-1959, must be deemed to have been passed on 18-7-1958.

(2) A few facts may be stated before we consider the point raised in the reference.

(3) One Ghasiram, who is described as party No. 1, claimed to be the owner of survey No.16 of Shirala. It is his case that this land had fallen to his share in a partition between him and his son Jagannath and he was therefore its exclusive owner. In 1957-58, he leased it to his separated son Jagannath who in his turn gave it to Ramjivan who is described as party No. 2 in these proceedings, on a batai agreement. After the expiry of the lease, Jagannath left the land after the crops were harvested, but Ramjivan did not. Ghasiram accordingly gave a notice to Ramjivan in the first week of December 1957 to quit the land. Ramjivan filed an application on 27-12-1957 for commutation of batai share into cash amount under S. 11 of the Berar Regulation of Agricultural Leases Act. That application was however dismissed for his default on 3-7-1958.

(4) On 17-7-1958 two complaints were made at the police station, Walgaon- one by the 1st party and the other by the 2nd party. On these complaints the police officer made the following report:

"Reported 11.30 Oclock. Field S. No. 16, A. 31, G. 12 of Ghasiram defendant (party No. 1) is at Shirala. The defendant had given that field to the witness Jagannath for the year 1958-59 for cultivation. As Jagannath had given it to the defendant (Party No. 2 Ramjivan) last year on half batar, the defendant No. 2 was cultivating it on half betai. In the first week of December the defendant No. 1 gave a notice to the defendant No. 2 for delivering possession. The defendant No. 2 filed a case in the Court. As the case was dismissed by the Court, the defendant No. 1 taking possession of the field sowed Parhati and Juar. The defendant No. 2 tries to enter into the field for asserting his possession. Hence a complaint u/s 145 is being filed in the Court for decision."

A formal charge sheet was also sent up to the Court with the report on the dame day. The charge sheet stated:

"That in the first week of December 1957 Ghasiram Rathi gave a notice to Ramjivan that he (Ghasiram) personally would cultivate the field in the next year and that Ramjivan should give up possession after the crop was reaped. Ramjivan did not give a reply to it and submitted an application in the Court for fixing the land revenue (rent) for 10 years. It was fixed for (hearing on) 3-7-1958. The case was dismissed in default of Ramjivan. Ghasiram took possession of that field on 4-7-1958 and sowed cotton and Juar. The complaint is therefore put up in the Court for decision."

(5) The report and the charge sheet were received by the Court of the Sub-Divisional Magistrate, Amaravati, on 18-7-1958.

(6) On 1-10-1958 the Sub-Divisional Magistrate made an order in writing under sub-section (1) of Section 145 of the Criminal Procedure Code. By this order he stated that he was satisfied from information and police report that a dispute likely to cause a breach of the peace existed concerning the possession of the field survey No. 16 between the members of Party No.1 and Party No. 2, and called upon the said parties to attend his Court on 14-10-1958 and put in written statements of their respective claims as regards the fact of actual possession of the subject in dispute. This order was passed in the presence of both the parties and their pleaders and the signatures of the parties were taken of its having been duly served upon them.

(7) After both the parties filed their statements, documents and affidavits, the Sub-Divisional Magistrate made his decision

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