SANKATHA MISIR Vs. BISHWANATH

JUDGEMENT

(1.) This is a reference from the Sessions Judge of Benares recommending that the order passed by the Magistrate in some proceedings under Section 145, Criminal P.C. be set aside and that a fresh inquiry be ordered by some other Magistrate. The Magistrate had followed the earlier provisions of Section 145, Criminal P.C., and had declared one of the disputing parties to be in possession of the land but the Sessions Judge held that as the Magistrate had only "kept a memorandum of the evidence recorded by him in English" he had acted in a manner contrary to the provisions contained in Section 356, Criminal P.C., so that there was no legal evidence on which a finding could be based.

(2.) The reference has been opposed by Mr. Ambika Prasad, who has argued that the Magistrate, in only recording a memorandum of the evidence, was not guilty of anything more than an error or irregularity which could be cured by Section 537, Criminal P.C.

(3.) Under Section 145, Sub-clause (4), Criminal P.C. (it is not suggested that earlier provisions have not been complied with): The Magistrate shall then .... 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...