Ram Krista Patra vs Aghore Naskar and others

In consequence of the appearance of only one of the parties to a proceeding under sec. 145 of the Code of Criminal Procedure, the Magistrate, without taking any evidence at all, decided in favour of the party who was present. Whether the party then absent had or had not put in any written statement on his own account seems to be doubtful; but this does not affect the matter now under consideration. It was not competent to the Magistrate to pass an order in favour of one of the parties to a proceeding under sec. 145 without some evidence that such party was in possession. The Magistrate was right in saying that he had to proceed ex parte. But the fact that he proceeds ex parte does not justify his abstaining from taking any evidence to show that the party who is present is entitled to an order in his favour. We set aside the order made as without jurisdiction and direct that proceedings may be re-opened and a proper inquiry held in the presence of both the parties, if they attend.