The learned Sessions Judge Srinagar has made this reference with the recommendation that the entire proceedings under Ss. 145/107 Criminal P. C. launched by Ghulam Mohi-ud-Din against Ali Bagban and others before the A D.M Srinagar be quashed.

It appears that an application under Ss.145/107 Crim. P C. was presented by the said Ghulam Mohi-ud-Din before the A.D.M Srinagar wherein he named correctly Ali Bagban and his son Ghulam Mohd. Bagban The parentage of a few other non-applicants was not mentioned in the application. The application stated that Ghulam Mohi-ud-Din was the owner of a three storied building (which contained a shop) situate at Safakadal. Ali Bagban was the tenant of this shop but he had surrendered his tenancy a few days earlier. Later on two days prior to the presentation of the application all the non-applicants took forcible possession of the shop which created a danger to public peace. It was prayed that proceedings under Ss. 107/145 Criminal P. C be taken against the non-applicants. A separate application for attachment of this shop was presented to the court on the same day, i.e. 14-1-63. Some clerk in the A.D.Ms Court recorded the statement of the applicant Ghulam Mohi-ud-Din and his witness Ghulam Mohd. Khan. On the same day an order of attachment of the shop was passed by the Magistrate. Notice under Ss in 145/107 Cr. P. C. were ordered to be issued to the non-applicants. The proceedings went on for some time in the court of the A.D.M when a revision petition was presented by Ali Bagban before the learned Sessions Judge Srinagar. The learned Sessions Judge has made the recommendation that the entire proceedings be quashed.

This reference was argued before me more than once. On one hearing Mr. Sharma appearing for the landlord Ghulam Mohi-ud-Din stated that Ali Bagban had voluntarily surrendered possession of his shop to his client for which a document was executed by him This document was presented by Mr. Sharma in this court on 25-9-64. Mr. Sharma contends that on account of this document which is dated 9th January 1963 the tenant Ali Bagban surrendered possession of the shop to the landlord Ghulam Mohi-ud-Din. If this document is correct, then I have to believe that on 9th January 1963 Ali Bagban surrendered his possession voluntarily, got some remission in rent from the landlord, and on the 12th again took forcible possession of the shop. The presentation of the document by Mr. Sharma here should in no way be construed that the document has become part of the original record. In view of the order I propose to make, the question of admissibility and production and genuineness of the document will be considered and decided by the trial court.

The learned Sessions Judge has discussed the evidence produced by the applicant Ghulam Mohi-ud-Din in the trial court, has taken into, consideration some execution file and other probabilities of the case, and then recommended that the entire proceedings should be quashed. I am afraid much of what has been stated by the learned Sessions Judge in his order of reference has to be kept out of consideration at this time. With due respects to the learned Sessions Judge he was not justified in discussing the evidence produced by the applicant. Under the provisions of S. 145 a finding about the merits cannot be given till both parties have led their evidence, unless of course the Magistrate under sub-S (5) of S. 145 comes to the conclusion that no dispute as alleged by a party exists in which case the Magistrate shall cancel his preliminary order. But nothing of the sort has been done by the A.D.M in this case, though as pointed out by the learned Sessions Judge, an application was made to him on 15th January by Ali Bagban for setting aside the proceedings. At this stage we cannot consider the probabilities of the case or come to a finding on merits. The learned Sessions Judge is not right in stating that on the presentation of the application by Ali Bagban for cancellatio

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