KUNJ BEHARI DAS Vs. EMPEROR

JUDGEMENT

(1.) This application in revision arises out of proceedings under Section 145, Criminal P.C. The present applicants claim to be the managing committee or trustees of a certain temple. They say that the original mahanth died some time at the end of the year 1933 and that they appointed Radha Raman Das as his successor on 4 December 1933 Radha Raman Das continued to be mahanth till 28 July 1935, when he executed a document relinquishing that position. On 29th July 1935, Radha Raman Das sent a telegram to the District Magistrate and made a report to the police that he had been forcibly dispossessed. On 3 August 1935, he made the application under Section 145, Criminal P.C., which has given rise to these proceedings. He said that he had been compelled by force to execute the deed of relinquishment. A police enquiry was then held and a report was made that there was a danger of a breach of the peace. The Magistrate called upon the parties on 31 August to put in their written statements. The written statements were filed on 2nd September. The present applicants made an application on 3rd September asking that the Magistrate should issue process to summon 12 or 13 witnesses. The Magistrate on that date said that he would go and make a local enquiry on 4 September. He did this early on the morning of the 4 and he afterwards passed an order holding that Radha Raman Das had been in possession of the property up to 28 July 1935, and that he had been forcibly dispossessed. He directed that Radha Raman Das should be placed in possession of the property. The main complaint of the applicants now is that they were not given an opportunity to produce their witnesses. No order was passed on their application of 3 September, directing that the witnesses were to be summoned, and orders were passed without the examination of those witnesses. I have been referred to the case of Chakrapan V/s. Emperor (1930) 28 ALJ 484.

(2.) A learned Judge of this Court remarked in that case that Clause (4), Section 145, Criminal P.C., threw upon the Magistrate a duty to summon such witnesses as might be mentioned to the Court by either party. As this application before me is an application in revision I do not consider that the applicants can require me to; adjudicate upon this question of law, but I am prepared to say that I have considerable doubt whether I should be prepared to follow the ruling in Chakrapan V/s. Emperor (1930) 28 ALJ 484. The attention of the learned Judge who decided that case was apparently not drawn to the provisions of Sub-section (9), Section 145, Criminal P.C. This sub-section is in the following terms: The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(3.) It seems to me that this sub-section loaves it entirely to the discretion of the Magistrate whether he will or will not summon any witness or witnesses. The argument placed before me seems to rest upon the supposition that in every case it is the duty of the Court to issue process to summon any witnesses whom either party wishes to summon. I do not think that there is any justification for assuming that any such principle exists. The duty of the Court in the matter of summoning witnesses is set forth differently according as the matter before the Court is an enquiry into a case triable by a Court of Session or a summons case or a warrant case, and the duty varies as between the prosecution and the accused. Under Section 208, Criminal P.C., in an enquiry into a case triable by the Court of Session, if the prosecution apply to the Magistrate to issue process he shall issue such process, unless for reasons to be recorded he deems it unnecessary to do so. When the accused is called upon for his defence ho is required to furnish a list of witnesses. The Magistrate may in his discretion summon and examine any witness named in the list in his own Court. If the accused is committed to the Court of Session the Magistrate is bound to summon the witnesses included in the list unless he thinks that they have been so included for the purpose of vexation or delay or for defeating the ends of justice, and he must give the accused person an opportunity of showing that they were not so included. During the trial of summons cases the duty of the Magistrate is much the same as it is in proceedings under Section 145, Criminal P.C. In Section 244(2), it is said that the Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.