SHAH JAMILUR RAHMAN Vs. ABDUL AZIZ

JUDGEMENT

(1.) This application by the first party is directed against a final order passed in a proceeding under Section 145 of the Code of Criminal Procedure in respect of 58.48 acres, equivalent to 93 Bighas 11 ka-thas 7 dhurs of land. I will refrain from mentioning the respective claims of the three parties involved in this case except for such part of their claim as becomes necessary to mention. I will also refrain from referring to the merits of the parties' cases because I feel, after hearing both the parties, that this is a case which should be remanded.

(2.) Appearing on behalf of the first party-petitioners, the first point which Dr. Sultan Ahmad has taken is that the appointment of a pleader commissioner in this case by the Magistrate was illegal and that, in any case, the pleader commissioner's report should not have been considered inasmuch as it was not legally put in evidence on being formally proved in accordance with law. In my judgment there is no substance in this point. Dr. Sultan Ahmad has drawn my attention to section 148 of the Code of Criminal Procedure which provides that the District Magistrate or the Sub-divisional Magistrate may depute any magistrate subordinate to him to make a local enquiry in a case under Chapter XII (which includes Section 145} and that the report of the Magistrate so deputed would be read as evidence in the case. He has contended that, there being no provision for appointment of a pleader commissioner, the only person who can be deputed to hold local enquiry is a subordinate Magistrate under Section 148. It seems to me, however, that this contention is misconceived. If a Magistrate feels that it is necessary to get some one to report upon the physical features of the land in dispute between the parties or the measurements of those lands, I do not see why he cannot depute a pleader commissioner for the purpose. The only difference is that the report of a Magistrate deputed under Section 148 can be read in evidence without formal proof whereas the report of a pleader commissioner could not, under the Code of Criminal Procedure as it stood before the amendments made by Act XXVI of 1955, be read in evidence without such proof. This is supported by the decision of a Division Bench of this Court in Chulai Mahto v. Surendra Nath Chatterji, ILR 1 Pat 75 : (AIR 1922 Pat 224).

(3.) Dr. Sultan Ahmad has argued that even under Section 145, as it stands after the amendments made by Act XXVI of 1955, the report of a pleader commissioner cannot be considered by the Magistrate unless and until it is put in evidence by giving formal proof. He has also argued that a report of a pleader commissioner is not a document within the meaning of Section 145 at all. There seems to be no substance in either of these arguments. The only provision under Section 145, as it stood before the last amendment, for consideration of materials was made in Sub-section (4), which laid down that the Magistrate should "peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.