CHANDAN BILASINI DASI Vs. SK HANIF MAHAMMAD

JUDGEMENT

(1.) THE learned Additional District Magistrate (Executive), Cuttack, has made this reference recommending the quashing of a final order under Section 145, Criminal Procedure Code, on the sole ground that there had been no adequate service of notice on Chandan Bilasini Dasi, the petitioner (who is now reported to be dead) in the proceeding before the learned Magistrate.

(2.) DURING the pendency of this reference Chandan Bilasini was found to have died. A report was called for from the learned Magistrate as to who should be substituted in her place. The learned Magistrate reported the details of the legal representatives who had since been noticed from this Court. But these legal representatives in spite of notice have preferred to remain absent.

(3.) ME . Sahu who appeared for the State brought to my notice that the recent decision of the Division Bench of this Court in which it was indicated that the affidavits for being used to support the claim of possession in a proceeding under Section 145, Criminal Procedure Code must be sworn to before the learned Magistrate who has seisin of the proceeding. In the present case one affidavit seems to be not in order. But that question need not be raised in a case of this type where one party did not appear at all and allowed the proceeding to go ex parte. I find that the remaining affidavits on behalf of the opposite parties were sworn before the same Magistrate and can be utilised. In the circumstances, even if one affidavit is ruled out being not in order, on the basis of the remaining three affidavits the claim of possession on ex parte basis can be found and has been rightly found by the learned Magistrate. In the circumstances, I am not prepared to accept the contention that on account of defect in affidavits the matter should go back and any fresh opportunity need be given to the person who had not appeared at all in the Court below.