HARENDRA KUMAR BOSE Vs. GIRISH CHANDRA MITRA

JUDGEMENT

(1.) This is a Rule calling on the District Magistrate and on the opposite party to show cause why the order complained of in this petition should not be set aside on the ground that the Magistrate neglected to enforce the summons issued to compel attendance of the applicants witnesses.

(2.) The order which is complained of is one under Section 145 of the Code of Criminal Procedure, and the question which we have to decide is, first, whether in a proceeding under this section it is obligatory on the Magistrate to enforce the attendance of any witness at the instance of the parties; and secondly, if it is not so obligatory, whether his action in this particular case has resulted in such a denial of justice to the parties bound by the order us to make it incumbent on us to interfere under the special powers placed in our hands by the Charter.

(3.) On the first point, the observation which we have to make is that, under the law, the Magistrate is the sole judge as to whether proceedings under Section 145 of the Criminal Procedure Code should or should not be set on foot. The section enables him, in his sole and absolute discretion, to take proceedings under it when he thinks that such proceedings are necessary to enable him to discharge the duty which the law places on his shoulders of preserving the peace in the district under his care. We private person has any right whatever to cause proceedings under that section to be taken. The Magistrate can act on his own motion, and no steps which are taken by a private party can render it incumbent on the Magistrate to act if, in the Magistrate's discretion, he thinks that the proceedings are not necessary. That being so, it is necessary to look to the section to see what it directs the Magistrate to do when he exercises these particular powers. It provides that he shall, without reference to the merits of the claims of any of such parties to a right to possess the property which is the subject of dispute, peruse the statements put in, hear the parties, receive the evidence 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 in possession of the land which is the subject matter ill dispute. Reading that section we should have been prepared to hold that the section neither contemplated the summoning of witnesses at the instance of the parties nor rendered it obligatory on the Magistrate to compel the attendance of any witnesses unless he, in his discretion, thought it necessary to take the evidence of those witnesses. It is unnecessary for us to discuss this point because the whole matter has been dealt with in the case of Tarapada Biswas V/s. Nurul Huq (1905) I.L.R. 32 Calc. 1093 where this very question was considered with great minuteness and great care, and the conclusion come to was that in proceedings under Section 145 of the Criminal Procedure Code, the Magistrate was not under any obligation to compel witnesses to attend at the instance of the parties. The law and the authorities having been very elaborately discussed in that-judgment and that judgment being one with which on this point we are in entire agreement, it is quite unnecessary for us to go through the cases which have been there discussed with great care and elaboration. All we can say is that we agree with the conclusion come to by the learned judges who decided that case, and we think that the law does not impose on the Magistrate a duty at the instance of a party to compel the attendance of witnesses at the hearing.