KANHU CHARAN SARAF Vs. RADHAMOHAN PADHI

JUDGEMENT

(1.) THIS is a reference under Section 438, Cr. P. Code, made by the Sessions Judge, bolangir Kalahandi, recommending to this Court to set aside the order of Sri. A. P. Shukla, Magistrate, 1st Class Titlagarh, dated 11-6-64, wherein he directed the nazul Amin to inspect the disputed property and to report to the Court on which of the plots the accused persons had constructed the house in question.

(2.) THE circumstances under which this Reference arises may be stated as follows: radhamohan Padhi as complainant, filed a case against Kanhu Charan saraf and some others under Section 447, I. P. C. in the Court of the Sub divisional Magistrate, Titlagarh, on the allegation that they had committed trespass into Nazul plots Nos. 351/d and 361/d in Khata No. 12 in town Titlagarh and erected some house thereon in spite of the protest of the complainant. After cognizance was taken, the accused, persons were duly summoned and both sides examined their witnesses. The prosecution also examined one Nazul Amin as one of its witnesses. On 23-1-64 the defence made a prayer for local inspection of the spot by the Magistrate. But the Magistrate did not consider it necessary to make any local inspection and posted the case to 11-5-1964 for argument. The argument was concluded on 11-6-64, but instead of posting the case for judgment, the learned Magistrate directed issue of summons to some other Nazul Amin, than the one who was examined by the prosecution, and to submit a report as to on which portion of the disputed plots the accused persons had constructed the house. It was the contention of the accused persons that it was not open to the Magistrate to issue summons to another Nazul Amin at that stage and to examine him as a witness, and after the arguments were closed, the Magistrate should have fixed a date only for judgment. The learned Sessions Judge was of the view that the steps taken by the learned Magistrate would fill up the gap of the prosecution case and would amount to collecting of the evidence which the Court is not authorised to do. Accordingly the learned Sessions Judge has made this, reference to this Court to set aside the order dated 11-6-1964 passed by the Magistrate directing a nazul Amin to make local inspection of the disputed property.

(3.) THE main contention raised in support of the Reference, by Mr. Kar is that--it was not open to the Magistrate to summon the witnesses at so late a stage when the arguments were over, even in exercise of the powers under Section 540, Cr. P. C. Mr. Rao, on the other hand contended that it was absolutely within the powers of the Court to summon a witness under Section 540 before the judgment was delivered. His contention is that the trial within the meaning of Section 540 continues till the judgment in the case is delivered by the Court, To appreciate the arguments on both sides, it is necessary to quote Section 540 Cr. P. C. here. It runs thus: -