A Magistrate cannot refer a case under Sec.146 (1) of the Cr. P. C. to a Civil Court without drawing up a statement of the facts of the case and without expressing his opinion that he is unable to decide the question of possession.

Anant Singh, J.

1. This reference was made by the Munsif of Araria through the District Judge of Purnea. It appears that by an order dated 15-2-1960 Mr. S.N. Varma, Sub-divisional Magistrate of Araria, referred a case under Sec.146 (1) of the Code of Criminal Procedure to the learned Munsif of Araria for decision as to the question of possession between the rival claimants over the subject-matter of a proceeding under Sec.145 of the Code of Criminal Procedure. The order of the Sub-divisional Magistrate was to the following effect:

"The first party is present.

The second party is also present. To my file.

The first party flies written statement and a petition for time to file affidavit. Second party does not file anything. Heard lawyers of both parties. Admittedly there is a title suit pending between the parties in which the question of possession will be gone into. It is, therefore, not desirable for this Court to take up consideration of this question in this proceeding. I am forfified in this view by Rugga Natha V/s. Moona Nanda, AIR 1959 Raj 153 (1). The lands in dispute are attached under Sec.146 Cr. P. C. Send the record to the Munsif Araria for needful Parties directed to appear before him on 1-3-60".

An objection was taken before the Munsif of Araria on behalf of the first party in the proceeding that the reference made by the learned Sub-divisional Magistrate was not proper, as not having been made in accordance with the provisions laid down in Sec.146 (1), Criminal Procedure Code.

2. The learned Munsif thought that the objection taken appeared to be valid and, therefore, he has referred the matter posing the following questions:

"1. Whether it is open for a Magistrate to refer a case under Sec.146 (1) of the Cr. P. C. to a Civil Court without drawing up statement of the facts of the case and without expressing his opinion that he is unable to decide the question of possession.

2. Whether it is open for the Civil Court to return back the reference to the Magistrate concerned, when the reference is not in accordance with law as provided under Sec.146 (1) of the Cr. P. C.

3. Whether it would be within the jurisdiction of the Civil Court to decide the question of possession on a reference like the present one".

Sec.145 of the Code of Criminal Procedure lays down the procedure how the proceeding is to be conducted. As provided in Sub-section (1), the parties are required to put in their documents or to adduce, by patting in affidavits, the evidence of such persons as they may rely in support of their claims. Sub-section (4) then provides:

"The Magistrate shall then, without reference to the merits or the claims of any of such parlies to a light to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so pat in, hear the parties and conclude the inquiry .. 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 .... ." Sec.146 is as follows: "(1) If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub- section (4) of Sec.145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him.

(1A) On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to it. It would appear that the Magistrate has no unrestricted powers to make