HARIPADA MANDAL Vs. SANYASI CHARAN BISWAS

JUDGEMENT

(1.) This is a Rule calling on the District Magistrate of Hughly and the opposite party to show cause why an order under Section 145 of the Criminal Procedure Code should not be set aside on the ground that, as the Magistrate went out of his way to issue process for the attendance of witnesses after the date on which the case should have been disposed of, he was bound to exhaust the processes of the Court in order to enforce the attendance of such of those witnesses as did not appear.

(2.) The facts underlying the case appear to be these. The 18th June was the date fixed for the disposal of the proceeding under Section 145. On that day, the opposite party produced and examined their witnesses. The petitioners then applied for an adjournment and the issue of process on some 14 persons on the ground that they were not sure that the service of notices on the parties would be completed before the 18th June. On this application, the reasons for which appear to us to be wholly inadequate, the Magistrate, weakly as we are inclined to think, granted an adjournment to the petitioners, and fixed the 28th June for the disposal of the case. On the 28th June, 11 of the witnesses named by the petitioners were present in Court, of these they examined only fire and refused to examine the rest. On their application, the Magistrate again did all he could to help them by ordering that one of the three absent witnesses should be re-summoned and that warrants should be issued for the arrest of the other two. The 5th July was the date fixed for the adjourned hearing. On the 5th July, none of the three witnesses referred to appeared and the petitioners applied for another adjournment and the issue of fresh processes. This was refused by the learned Magistrate, and we think very rightly, regard being had to the previous conduct of the petitioners and also to the circumstance, which was shown by the returns of service, that the three witnesses mentioned could not be found. There is, therefore, no substance whatever in the ground taken on behalf of the petitioners, and we desire to point out that instead of having anything to complain of, they appear to have been treated with more consideration than they deserved.

(3.) We would further observe that the mistake which we think was made in this case was the grant of an adjournment on the 18th June. What Sub-section (4) of Section 145 of the Criminal Procedure Code contemplates is that on the date originally fixed, the Magistrate should take all the evidence that is produced before him and unless he considers it necessary for good reason to require further evidence, should decide then and there, if he can, which of the parties is in actual possession. G.L. No. 3 of 1909 on the subject was issued by this Court, and it will be found re-produced on page 10, Vol. I of our General Rules and Circular Orders (General). We take the opportunity of inviting the attention of the learned Magistrate concerned in this case to the suggestions and instructions contained in that letter which must, we think, have been entirely overlooked by him.