MOOL CHAND GARG, J.

1. On 10.02.2001 a dispute arose between the petitioners on the one hand and the respondents on the other hand regarding possession of a plot of land measuring 1000-1200 sq. yards forming part of khasra no. 188, Main Dabri Nasirpur Road (hereinafter referred to as the “disputed property”) which also resulted in registration of two cross cases against each of the parties vide FIR No. 100/2001 and 101/2001 both under Sections 147/149/308/323/427/506 IPC at P.S. Najafgarh which are still pending.

2. SHO Najafgarh on the same day also made a reference of the dispute to the then SDM Najafgarh under Section 145 Cr.P.C. apprehending breach of peace. SDM passed a preliminary order under Section 145(1) of Cr.P.C. and called upon both the sides to file their written statements. The petitioner was arrayed as the first party while the respondents were arrayed as the second party in those proceedings. In their written statements both the parties claimed settled possession in the aforesaid plot on the relevant date as well as two months before that and alleged that it was the other party who wanted to grab the possession of the same.

3. During the course of proceedings the parties at one stage also requested for dropping the proceedings but it was not agreed by the SDM. In fact vide his detailed order dated 11.05.2001 the SDM declared that the second party i.e the respondents herein were in possession of the disputed property and were entitled to retain the possession till evicted in accordance with law by a competent Civil Court. He also directed SHO concerned to provide necessary protection in this regard. However the order was passed without recording any evidence.

4. The petitioner (i.e the first party) filed a revision against the aforesaid order before the Sessions Judge which was decided by the then Addl. Sessions Judge, Shri. R.K. Gauba. He remanded the case back to the SDM with the following directions:

9. But then, I am disturbed at the manner in which proceedings appear to have been short-shrifted by the SDM. The provisions of section 145(4) Cr.P.C. enjoin upon the SDM to receive such evidence as the parties may produce before him. The SDM had called upon both sides to lead evidence on 4.5.2001. Both sides sought the proceedings to be dropped though for different reasons. The SDM adjourned the matter to consider the said joint prayer of both sides. But apparently he did not agree with them. He considered it proper to take the matter to logical end by way of final order U/s 145(6) Cr.P.C. But, for this purpose, it was his bounden duty to call upon the parties to lead their respective evidence for purposes of enquiry U/s 145(4) Cr.P.C. Rather than doing this, the SDM proceeded to decide the matter only on the basis of the documents and written replies that had been earlier submitted.

10. The counsel for second party has relied on 1885 Cr.L.J. 1837 to argue that recording of oral evidence was not compulsory since the proceedings before the SDM were short and summary in nature and the Magistrate could dispose it of on perusal of the documents without examining any witness. The ld. Counsel for the second party seems to be ignoring the full import of observations in Para 9 of the judgment cited at bar. It was observed in that case that recording of oral evidence was not compulsory “if none of the parties desire to produce such evidence and if the Magistrate does not feel the necessity for the same”. It is quite clear that in a case where questions of fact about physical possession was raised on account of contradictory claims of both sides, the matter could not be settled by the SDM without calling upon the parties to lead evidence. This is why the SDM had listed the matter for evidence of the first party as per his order dated 20.4.2001. A finding about the merits of the rival claims could not be given under Section 145 Cr.P.c. till both parties had led evidence. (AIR 1965 J&K 69), In these circumstances, the impug

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