DWARKA DASS Vs. STATE

JUDGEMENT

(1.) THIS revision petition under Section 439, Criminal Procedure Code is directed against a composite order dated 12-8-1977 passed by the City Magistrate, Jammu, in proceedings under Section 145 Code of Criminal Procedure between the parties whereunder the court below has rejected two applications viz:

(2.) THE Police Paccadanga, Jammu, lodged proceedings under Section 145, Cr. P. C against the petitioner herein who consist one set of non-applicants, and against non-applicants 2 to 7 herein as comprising the second set of the non-applicants. The dispute was with regard to the possession of a building of Kashyap Rajput Sabha located in Moti Bazar, Jammu. The proceedings under Section 145, Cr. P. C. were in the first instance initiated before the judicial Magistrate (Munsiff) Jammu, from where these were later transferred to the court of the City Magistrate, Jammu, for disposal. The parties as directed adduced evidence through affidavits in the court of City Magistrate. The petitioners herein on perusal of the affidavits filed before the learned Magistrate by the opposite party prayed for summoning of and examination in the court of some of the de-ponants with regard to the particulars stated by them in their affidavits. The learned Magistrate summoned only one deponant namely Bhola Bhagat for examination in the court. Bhola Bhagat appeared and was examined by the court. The petitioners herein submitted that they be permitted to cross-examine the witness. The request was however, not granted by the learned Magistrate, who held that there was no provision in Section 145, Cr. P. C. under which the petitioners herein or any other party to the proceedings could be permitted to cross-examine a witness who was examined by the court under proviso (1) to Sub-section (4) of Section 145, Cr. P. C. The refusal of the trial court to permit the petitioners herein to cross-examine the witness is their first grievance in this petition. The second grievance is that the learned Magistrate without any justification arbitrarily rejected the prayer of the petitioner herein for summoning and examining a number of witnesses of the petitioner who were requested to be summoned under the provisions of Subsection (9) of Section 145, Cr. P. C. The petitioners herein submitted before the learned Magistrate that the witnesses intended to be so summoned were Government Officials and as such it has not been possible for the petitioners herein to obtain their affidavits as they had refused to be identified with any party in dispute. The reasoning however, did not prevail with the learned Magistrate who in the impugned order held that the witnesses did not appear to him to be in any way conversant with the factum of actual possession. The petitioners herein have alleged that the rejection by the learned trial Magistrate under the circumstances was not founded on any rational basis and the reasoning given by the trial Magistrate therefore, was nothing more than a bald surmise which was wholly improper and illegal.

(3.) WHEN the matter came up for hearing before one of us on 12th Dec, 1977, the following order was passed: