Raj Kishore Prasad, J.

1. This is a reference, under Sec. 438, Criminal Procedure Code, hereinafter referred to as the Code made by the learned 2nd Additional Sessions Judge of Santal Paraganns, Dumka, recommending that the order of the 28th March 1981, of Mr. K.P. Sinha, Magistrate First Class, Godda, passed under Sec.145 of the Code, declaring the possession of the first party, who are the opposite party here, should be set aside.

2. The learned Judge, in his letter of reference, has discussed the facts and the law with great clarity and fully in order to show that the impugned order does not conform to the provisions of Sub-section (4) of Sec.145 Of the Code, in that, the affidavits had not been considered by the learned magistrate as required by Sub-section (4) of Sec.145 of the Code. The learned Judge, in support of this reference, has referred to and relied upon two decisions of Sahai, J., in Jamilur Rahman V/s. Abdul Aziz, 1960 BLJR 179 : (AIR 1960 Pat 240) and Rudra Singh V/s. Bimla Debi, 1960 BLJR 328 : (AIR 1960 Pat 505) in which it has been held that the magistrate should consider the affidavits of each deponent, and, his order without consideration of such affid