Mt. Wahid-un-nissa and Others vs Pichit Lal Missir and Another

Kulwant Sahay, J.—The petitioners were the first party in a proceeding u/s 145 of the Code of Criminal Procedure. The dispute relates to the possession of 250 bighas of land in Mauza Bira in the District of Monghyr. On the 32nd November 1922, Mt. Wahidunnissa of the first party filed a petition before the Sub-Divisional Magistrate to the effect that there was imminent likelihood of a breach of the peace in respect of the possession of the 25th bighas of land in dispute. An order u/s 144 of the Code of Criminal Procedure was passed and the Sub-Inspector of Police was directed to enquire into the matter and submit a report. The Sub-Inspector submitted his report whereupon proceedings under S 145 were ordered to be drawn up on the 5th December 1922; and by an order of the same date it was directed that the first party should produce her witnesses on the 20th December 1922, In the proceeding as originally drawn up the petitioner No. 1, Wahidunnissa was the only member of the first party. On the 20th December 1922, the second party appeared and filed a petition stating that certain other persons who were interested in the land in dispute should also be made parties, and upon this application Azizur Rahman and Kamaluddin, were added as first party in the proceeding. The three persons of the first party jointly own a 10-annas share in the village and the second party own a 6-annas share. Several adjournments were taken by the parties in order to settle their disputes out of Court, and on the 17th March 1923, the learned Magistrate, while postponing the case to the the 3rd April, directed that the parties must either settle all matters in the meantime amicably or must come ready with evidence on that date. He stated: "I must not allow further adjournments on any account." On the 3rd April 1923, a petition was again filed by both parties for a week''s adjournment in order to enable them to come to terms. This application was rejectei, am the first party were called upon to produce their evidence. They thereupon examined six witnesses and the order on the 3rd April 1923 was that the case was adjourned to the 12th April 1923 for the evidence of the second party. On the 11th April 1923 a petition was filed on behalf of the first party wherein it was stated that as there was a talk of compromise going on between the parties the first party were not ready with their evidence on the 3rd April 1923 and they examined only such witnesses on that date as were present in Court. They prayed for issue of summonses on a number of other witnesses whom they wanted to examine on the next day. The petition was put up before the Magistrate with an office note to the effect that the case was a Section 145 case, that the petition filed by the first party was for having summonses served upon witnesses and that written summonses were attached therewith. This application with the office note being put up before the learned Magistrate, he made an order to the effect "Let it be served" On the 12th April 1923 the case was again adjourned as the learned Magistrate had no time to tike up the case, and the next date fixed for the hearing was the 24th April 1923. On the 24th April 1923, the first party wanted to examine the witnesses named in their petition of the 11th April. The learned Magistrate examined two of those witnesses and refused to examine the rest. The order passed upon this petition runs thus: "These are fresh witnesses not named in the first list of witnesses; can''t examine them; file." After rejecting the petition of the first party and after examining two more witnesses for the first party, the learned Magistrate postponed the case to the 27th April 1923 for taking the evidence of the second party. The evidence of the second party was duly taken, and ultimately the learned Magistrate passed his final order declaring the second party to be in possession. The first party thereupon filed the present application for revision to this Court, and one of the main grounds urged before the Bench before whom the application was filed was that the first party, Azizur Rahman, had his witnesses ready but that those witnesses'' were not examined and that the statement in the order of the learned Deputy Magistrate to the effect that Azizur Rahman did not contest the proceedings was incorrect.

This Court thereupon made an order calling upon the Deputy Magistrate to report on the petition particularly as regards the allegation that the first party, Azizur Rahman, did contest the proceedings and had his witnesses ready but that those witnesses were not examined. The learned Deputy Magistrate has submitted an explanation, and he says that, as a matter of fact Azizur Rahman filed a written statement and thereafter ever appeared to contest the proceeding.

It has been pointed out by learned Counsel for the petitioners that the petition of the 24th April 1923 was as a matter of fact, signed by the Mukhtar for Azizur Rahman, although the petition purported to be on behalf of Bibi Wahidunnissa only: He also points out that certain other petitions were also filed which bear the signature of the Mukhtar for Azizur Rahman alone and he contends that, as a matter of fact, Azizur Rahman did contest the proceedings.

Mr. G.C. Pal on behalf of the opposite party contends that, assuming that Azizur Rahman did contest the proceedings and that the application of the 24th April 1923 was really an application on behalf of Azizur Rahman, that fact does not alter the position. He contends that it was in the discretion of the learned Magistrate to refuse to examine the witnesses who were produced on the 24th April 1923 and he relies on the case of Samir Sheikh v. Jahed Sheikh [1906] Cri.L.J. 478. In the case it was held by a Division Bench of the Calcutta High Court that a Magistrate acting u/s 145, Criminal Procedure Code, has a discretion in the matter of examination of witnesses. He is not bound to examine all the witnesses adduced by the parties, but may limit the number for good and sufficient reason. It was further laid down that the discretion is one which must be exercised with due care and caution and with careful regard to the circumstances of each particular case. That case clearly lays down the proposition that, in a proper case, it will be in the discretion of the Magistrate to refuse to examine all the witnesses produced by any party. It appears in the present case that, although Azizur Rahman was not a party in the proceedings as originally drawn up, yet the proceedings were amended on the 20th December 1922 and Azizur Rahman filed his written statement on the 10th January 1923; and, although the firs; list of witnesses was filed before Azizur Rahman had filed his written statement, still it was open to him to come ready with his witnesses on the 3rd April 1923 when the witnesses of the first party were examined. Moreover, it appears that when the Magistrate recorded his order oil the 3rd April 1923 that the case was adjourned to the 12th April 1923 for the purpose of taking the evidence of the second party, no objection was raised by the first party alleging that they had other witnesses to examine or other evidence to produce. On the 24th April the learned Magistrate exercised his discretion he examined two more witnesses for the first party, although the first party had closed their case and the case was adjourned in order to take the evidence of the second party, and after examining two more witnesses he refused to examine the fresh witnesses produced on that date. Now, if that is a matter of discretion, I am unable to say that the learned Deputy Magistrate acted without jurisdiction in refusing to examine the witnesses produced on the 24th April 1923.

Learned Counsel for the petitioners relies upon the case of Biswanath Mahapatra v. Shivanand Saraswati [1921] 2 P.L.T. 380. The facts of that case are different from those of the present ease. In that case the question related to the right to collect rent from certain tenants; both parties claimed the right to collect rent from tenants of the lands in dispute. The learned Deputy Magistrate examined some of the tenants, and as regards those tenants he held that the party in whose favour those tenants had deponed was in possession by collecting rent from those tenants. There were altogether fifty-eight tenants on the land, and one of the parties wanted to examine all those tenants and it was argued on his side that all his witnesses who were the tenants of the land were present in Court but that the learned Deputy Magistrate refused to examine all of them and, therefore, there was a denial of justice. It was held that, although it was discretionary for the Magistrate to refuse to examine all the witnesses, yet, having regard to the circumstances of that particular case, there was a denial of justice, inasmuch as the learned Magistrate had proceeded to declare possession in favour of the party in whose favour the tenants had given evidence, and if the other tenants had also been examined it was likely that the learned Magistrate would have made an order in favour of that party as regards the other tenants also The witnesses whom the Deputy Magistrate refused to examine in that case were the witnesses named in the first list and they were not fresh witnesses; and, in remanding the case, Mr. Justice Jwala Prasad observed. "It must, however, be mentioned that the second party is not entitled to examine any witness not mentioned in the list of persons (hazri) filed on the 3rd December 1920." Therefore, in that case also the party was limited only to those witnesses whom he had named in the first list. In the present case, the witnesses who were not examined were witnesses who were not named in the first list, but who were witnesses named in a fresh list, and I am unable to hold that the learned Deputy Magistrate acted without jurisdiction in not examining those witnesses. This was the chief point taken on behalf of the petitioners.

Another point taken on their behalf was that the learned Deputy Magistrate was wrong in admitting into evidence a written statement which had not been properly proved. It appears that a copy of the written statement was filed by the second party but the original was not produced and the copy was admitted and marked as an exhibit after examining the copyist and the comparing clerk who had prepared the copy. This was, no doubt, an irregular procedure. But it appears that no objection was taken to the document being taken in evidence and it was marked as an exhibit without any objection. The fact of the document being marked as an exhibit without being duly proved may be an illegality, but it does not affect the jurisdiction of the Magistrate to pass the final order in this case.

The last objection taken on behalf of the petitioner is, that the learned Deputy Magistrate has not considered a document marked ''X'' which is a report of the Sub-Inspector in a previous proceeding. The learned Deputy Magistrate expressly refers to this document and comments upon it; and there is no reason to hold that he did not consider this piece of evidence on behalf of the first party.

None of the grounds taken by learned Counsel for the petitioners can, therefore; be entertained; and this application must, therefore, be rejected.