Arjun Mahton vs Juggannath Singh

Ross, J.—This is an application by the first party against an order passed by the Sub-Divisional Magistrate of Hazaribagh u/s 145 of the Criminal Procedure Code declaring the second party to be in possession of certain land.

Two grounds are taken in this application. The first is that the petitioner has been refused a fair trial because he had no opportunity of presenting his case before the Court. It is stated that the petitioner resides 70 miles away from Hazaribagh and that the proceeding drawn up against him was served on the 14th of January, the date fixed for trial being the 21st. On that date a petition was filed stating that the witnesses had not come and that copies of papers were required and an adjournment of one month was prayed for. The Magistrate appears to have refused this application and decided the case on the arguments of the pleaders of both sides and on such evidence as was adduced. Now Section 145, Clause (4) lays down what the procedure is to be. The Magistrate has to peruse the written statement, to 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 the question of possession. There is nothing in this section which requires the Magistrate to issue processes on any witnesses. The whole question was discussed fully in Tarapada Biswas v. Nurul Haq, (1905) 32 Cal. 1093=2 C. L. J. 280 where it was pointed out that

"the legislature could hardly have contemplated an elaborate and protracted investigation the result of which might in many instances be to defeat the very object in view, namely, an effective prevention of a breach of the peace. The whole object might obviously be defeated if the Court could be compelled to summon and re-summon witnessess at the choice of the parties."

It was further observed that it appeared clear from the provisions of the Code that it is not obligatory upon the Magistrate to assist the parties to a proceeding u/s 145 to produce their witnesses and they cannot claim as a matter of right that processes should be issued by the Court to enable them to bring forward their evidence. This case is a direct authority against the contention of the petitioner and it has been approved and followed in Harendra Kumar Bose v. Girish Chandra Mitra, (1910) 38 Cal. 24=7 I.C. 798 I cannot see therefore that in refusing to issue summons the Magistrate refused a fair trial. He took all the evidence that the parties had ready and heard what they had to say.

The second contention is that the Magistrate has acted on the delivery of possession by the Civil Court without going into the question whether that possession was symbolical or actual. Whether there was recognition by the second party of the sub-tenancy claimed by the first party or whether there was resumption of tenure u/s 14 of the Chota Nagpur Tenancy Act, these are plainly questions which were not for the Magistrate to decide. He had evidence before him that the judgment-debtor in the decree under execution was ejected and that possession was delivered by the Civil Court to the second party. His decision may be right or it may be wrong but I can see no defect in jurisdiction. The application is dismissed.