MANMATHA NATH MITTER Vs. BARODA PROSAD ROY CHOWDHRY

JUDGEMENT

(1.) THE question which arises on this rule is whether the order of the Deputy Magistrate of Diamond Harbour declaring the possession of the second party ought to be set aside because he refused to examine some seven -witnesses of the first party, who were present both on the 27 and 28 January. That the District Magistrate distinctly refused to examine the witnesses is clear from the order he passed in the following terms upon a petition put in by the first party: "I think sufficient evidence has been recorded on the side of this party. Further examining not necessary. Rejected." This is not a case in which the Magistrate has in the exercise of his discretion declined to grant an adjournment to enable a party to produce evidence after he has already had an opportunity of doing so. THE Magistrate's refusal is in direct contravention of the provision of law contained in Clause (4), Section 145 of the Criminal Procedure Code, which says that the Magistrate "shall receive the evidence produced."

(2.) IT has been contended by learned Counsel for the opposite party that this is not a question affecting, the jurisdiction of the Court and that we ought not therefore to interfere in revision. "We think this contention comes too late and cannot he sustained. This Court has on other occasions interfered when the Magistrate has refused to take the evidence which a party desired to adduce, e.g., the case of Madhab Chandra Tanti V/s. Martin (1901) I.L.R. 30 Calc. 508 (note) in which it was held that the Magistrate acted without jurisdiction in refusing to issue processes for the attendance of witnesses cited by a party. There was another case of the kind recently decided by Ameer Ali J. sitting with a member of the present Bench. We accordingly set aside the order of the Deputy Magistrate dated the 5 March last. IT will now be open to him, if he should think fit, to take up the case at the stage at which it stood before he passed final orders, giving the first party an opportunity to examine the witnesses they had in attendance on the 27 and 28 January. "We see no reason to transfer the case as we doubt not that the Deputy Magistrate will not allow himself to be influenced by his previous decision, but will give a fair and impartial consideration to the additional evidence that may be adduced.