Moti Singh and Others vs Dhanukdhari Singh Others

Jwala Prasad, J.—I regret that the order of the Magistrate dated the 3rd of May 1922, declaring the possession of the first party u/s 145 of the Code of Criminal Procedure, must be set aside and the case remanded for continuing the trial thereof from the stage at which it had reached that day. This was a very old case. The dispute between the parties led to a proceeding u/s 145 of the Code some time last year and on account of the indiscretion of the Magistrate, who tried that case, the order had to be set aside by this Court on the 19th of October 1921 with the direction to start a fresh proceeding in case of a danger of the breach of the peace still existing. On the 26th of November 1921 the Magistrate considered the Police report and the High Court judgment referred to above and started the proceeding which is the subject matter of the present application obviously because the dispute between the parties still continued in so acute a form as to necessitate the adoption of a fresh proceeding u/s 145. Now the object of Section 145 is to prevent a breach of the peace by a summary decision as to the possession of the contending parties leaving them to decide their title and right to possession in a competent Civil Court where naturally the proceeding has to be a protracted one. It is therefore incumbent upon Magistrates to dispose of proceedings u/s 145 as quickly as possible and with due regard to the rules of procedure prescribed by that self-contained Section. These rules are very simple and it is to be regretted that the Magistrate in the present case has not adopted them although his attention was drawn to the rules by the order of this Court, dated the 19th October 1921. It is extremely harassing to the parties that the present proceeding started on the 26th November 1921 could not be finished by the 3rd of May 1922.

Without going to the earlier orders in the case I would at once come to the order of the 6th of February 1922. By that order the case was made over to the Magistrate in question when the evidence had already commenced in the Court of the Magistrate who had before that the seizin of it. In the order of the 7th of February the Magistrate directed the witnesses of the first party to appear on the 17th of February; thereby he allowed the second party to keep back his witnesses till the evidence on behalf of the first party was finished. Thereafter on various dates ho examined several witnesses on behalf of the first party only in chief. The procedure for the trial of a case u/s 145 is that laid down for the trial of summons cases where witnesses are examined, cross-examined and re-examined and then discharged. The Magistrate in the present case started the enquiry as if it was a warrant case. He examined the witnesses in chief and postponed their cross-examination till after the first party had closed its case. Then on the 5th April 1922 the first party closed its case and the witnesses were directed to be produced for cross-examination on the 18th. One witness for the first party was then cross-examined on three dates, the 18th, the 19th and 20th of April. The cross-examination shows that the Magistrate would not have taken more than half an hour or so each day in recording the cross-examination of that witness. This was, as observed above, extremely harassing to the parties. For cross-examining one witness the second party had to go to the Court day after day. There is no reason why the Magistrate should not have taken up this case and continued the hearing of it till it was finished in two or three sittings. The result was that the parties had got tired of this procedure and on the 3rd May 1922 when the cross-examination of the witness had to be resumed the second party did not appear in time. The Magistrate then disposed of the case exparte holding that the evidence adduced by the first party was sufficient to prove its possession over the lands in question. No opportunity was given to the second party to cross-examine the witnesses other than the one already referred to and two other witnesses, Nos. 11 and 15. Witness No. 11 was a Sub Deputy Collector and he was a formal witness. His cross-examination was declined by the second party. Witness No. 15 was also a formal witness. He simply proved the complaint petition.

Mr. Akbari says that the second party had a right to cross-examine these witnesses and if they did not cross-examine them after they were examined-in-chief there was no irregularity committed by the Magistrate. He has also referred to section 138 of the Indian Evidence Act. I am unable to agree with this view section 138 of the Act has obviously no application. It only lays down the order in which the witnesses will be examined, cross-examined and reexamined; and, referring to the cross examination it says that the witnesses will be cross-examined after the examination-in-chief if the party so desires. It certainly implies that the party had an opportunity to cross-examine and does not mean hat merely a right to cross-examine a witness without an opportunity being offered for cross-examination is a sufficient compliance with the requirements of the law.

Now, it is an elementary principle of law that an examination-in-chief of a witness, without an opportunity being offered to the opposite party to cross-examine, is not legally acceptable. Therefore the evidence of the witnesses in the present case was not such as upon which the Magistrate could act. It may, however, be said that the 2nd party was absent when the case was called on and one of the witnesses of the 1st party referred to above who was under cross-examination was present in Court and therefore there was an opportunity to cross-examine him. The non-appearance of the 2nd party does not therefore make evidence of that witness in. admissible. There is some force in this argument. But the Magistrate does not in his order say that he has acted upon the evidence of that witness alone and not upon the evidence of witnesses who were not cross-examined and whose evidence was, as observed above, inadmissible. It appears to me that apparently he has not referred to any evidence. After the default was committed by the 2nd party he simply in continuation of his recording the order that the second party did not put in appearance, wrote one passage in his order that the "first party had adduced sufficient evidence to prove possession." There is also a good deal of force in the contention of Mr. Yunus that on that day only the first party''s witness referred to above was to be cross-examined and that the Magistrate ought to have given opportunity to the second party to adduce its evidence. This opportunity was never given.

Considering all the circumstances of the case I hold that the order of the 3rd of May 1922, does not seem to have been based upon the legal evidence and is therefore without jurisdiction. I also hold that the Magistrate has denied a fair trial of the case to the second party. I further hold that the Magistrate has, in the present case, shown great indifference in the disposal of the case. He seems to have treated this case as if of no import acne and used to take it up when it suited him. This is perhaps due to his being in charge of the treasury and thus not being able to afford much time for this case. I think some better arrangements should have been made for the trial of this case.

I therefore set aside the order of the Magistrate, dated the 3rd of May 1922 and direct that the case be taken up from that stage after giving an opportunity to the second party to cross-examine one witness already referred to and the other witnesses on behalf of the first party and to adduce its own evidence if any.

Coutts, J.

I agree that the order must be set aside and the trial continued from the stage it had reached.