K.B.N.SINGH, J.

1. This revision is directed against an order declaring the possession of the opposite party in a proceeding under Sec.145 of the Code of Criminal Procedure (hereinafter referred to as the Code) in consonance with the findings of the Civil Court recorded on a reference made under Sec.146(1) of the Code.

2. The main contention of Mr. Pandey appearing on behalf of the petitioner is that the order dated the 27th July, 1967, by which the learned Magistrate referred the proceeding under Sec.146(1) of the Code was invalid inasmuch as the learned Magistrate made no effort in the said order to discuss the evidence at all from which it could appear that he was unable to decide the question of possession and, hence, he was referring the matter to the Civil Court. He has, therefore, urged that the reference being itself invalid, the impugned order of the learned Magistrate recorded under Sec.145 of the Code on the basis of the findings of the Civil Court under Sec.146(1) of the Code was without jurisdiction. Reliance was placed on a Bench decision of this Court in the case of State of Bihar V/s. Hari Mishra, (AIR 1965 Pat 411) : (1965 (2) Cri LJ 527) in support of the submission that the invalidity of the reference made the subsequent orders wholly without jurisdiction. It was for consideration of that question that the matter has been referred to a Division Bench.

3. A perusal of the order of the learned Magistrate referring the matter to the Civil Court dated the 7th July, 1967 (Annexure. 1) undoubtedly shows that he has made no attempt whatsoever to consider or discuss the evidence in order to find out whether any and which of the parties was in possession or none of the parties was in possession. It is the duty of the Magistrate to analyse and discuss the evidence and it is only when be is unable to decide as to which of the parties is in possession of the subject in dispute, that he can refer the matter to the Civil Court for a finding as to which of the parties was in actual possession. Such powers are not to be exercised light-heartedly. Certainly the manner in which the learned Magistrate has referred the matter to the Civil Court is highly condemnable and reprehensible all the same none of the parties challenged it before any higher Court. They appeared before the learned Munsif and produced evidence before him. It was only after the final order was passed against the petitioner, who was the first party to the proceeding, in pursuance of the finding of the Civil Court, that the question is sought to be raised that the invalidity of the reference will also vitiate the final order and make it without jurisdiction. Reliance is placed on the said Bench decision in support of this submission. I do not think there is any substance in the submission of the learned Counsel. The question that came for consideration in the above Bench decision was about the invalidity or otherwise of the reference at the initial stage and that Bench decisions does not lay down any such proposition that the invalidity of the reference under Sec.146(1) of the Code would make the final order in the proceeding based on the decision of the Civil Court, a nullity. In the case reported in AIR 1965 Pat 411 : (1965 (2) Cri LJ 527) (supra), the reference was made even before any evidence wag led before the Magistrate, simply because a title suit between the parties was pending. An objection was taken before the Munsif by one of the parties that the reference was invalid. Thereafter the learned Munsif referred the matter to the Court posing three questions, namely, (i) whether it was open to a Magistrate to refer a case without drawing up a statement of facts and without expressing any opinion that he is unable to decide the question of possession, (ii) whether it is open to the Civil Court to return back the reference if it was not in accordance with law as provided under Sec.148(1) of the Code and (iii) whether it would be within the compet