MADHUSUDAN KISAN Vs. RENGTU KISHAN AND 5 ORS.

JUDGEMENT

(1.) PRELIMINARY order under Section 145, Code of Criminal Procedure was passed on 19 -2 -965. Parties were directed to appear before the learned Sub -Divisional Officer on 26 -2 -1965 and to put in their respective claims as to the fact of their actual possession of the land in dispute. It is to be noted that the preliminary order did not require the parties to put any documents or to adduce, by putting affidavits, evidence of such persons as they rely upon in support of such claim as prescribed in Section 145(1), Criminal Procedure Code. The order -sheet does not show that the case was put up on 26 -2 -1965. In the order -sheet the next date is 2 -3 -1965. On that day, the parties were present and on their application the case was adjourned to 5 -4 -1965. The order passed on that day may be extracted Advocate for 1st party files written statement and 2nd party absent on call. Case to 3 -5.1965. Parties informed. The underlined expression has been scored through and initialed by the learned Sub -Divisional Officer. Later in the day, he passed the following order 2nd party files written statement. Case transferred to the file of Shri A.A. Khan, Magistrate, First Class, for disposal according to law.

(2.) THE only contention urged by Mr. Mohapatra is that on the learned Magistrate's own finding that the first party was ignorant of all orders beginning from the later part of 5 -4 -1965 till 24 -4 -1965, committed an illegality in not holding that the order dated 24 -4 -1965 was without jurisdiction and a nullity and could be ignored by him. Mr. Misra besides combating the aforesaid proposition contended that the second party members' were given no opportunity for cross -examining the witnesses of the first party and for adducing evidence to establish that the member of the first party was aware of the order passed on the later part of the day on 5 -4 -1965 and absented himself deliberately.

(3.) TWO questions loom large for examination in this case: (i) Whether the final order under Section 145(6), Criminal Procedure Code passed on 24 -6 -1965 is without jurisdiction and a nullity; and (ii) If so, can the learned Magistrate himself ignore such order and proceed with the case from the stage from which the member of the first party had no notice?