1. This is a reference made by the learned Sessions Judge, Upper Assam Districts, under the provisions of Section 433, Cr. P. C., drawing our attention to Misc. Case No. 80 of 1950, in which one Kamini Kumar Das, First Party, had filed a case under Section 145, Cr. P. C., against one Bhim Kanta Keot and another, the second party, in the Court of the First Class Magistrate of Sibsagar, Mr. M. Gogoi.
2. The learned First Class Magistrate, after referring the matter to the Police who reported that there was a likelihood of a breach of the peace, called upon the parties to file their written statements in accordance with law, and fixed a date of hearing. On 30-11-1950, the date on which the case was first fixed for hearing, both the parties prayed for an adjournment, and it was granted. The case was adjourned to 29-12-1950 on which date the First Party prayed for an adjournment, which was granted. The case was adjourned to 12-2-1951. On that date again the First Party was not ready, whereupon the learned Magistrate declined to adjourn the proceedings any further and dropped the proceedings and discharged the Rule and ordered the land to be released from attachment.
3. The learned Sessions Judge rightly points out that the order of the learned Magistrate is not in accordance with law. After entertaining the proceedings and calling for the written statements, even if the First Party failed to produce any evidence, the learned Magistrate could have acted under Section 145 (4) and come to a decision one way or other. The law does not provide for dismissal of the proceedings on the ground that one of the parties is absent. On this ground, we must accept the reference and set aside the order dropping the proceedings and direct the learned Magistrate to make an enquiry into the petition under Section 145, Cr. P. C., and dispose of it according to law.
4. Mr. Barua for the Second Party points out that the proceedings are nearly two years old and that it is not desirable that the proceedings should be re-started after the lapse of such a long time. That is an aspect which the trying Magistrate is competent to consider, for, under Clause (5), if it appears to the Magistrate that there is no likelihood of a breach of the peace, he has the power to cancel the preliminary order made by him under the provisions of Section 145, Cr. P. C., and stay all further proceedings.
5. The result is that the reference is accepted. The learned Magistrate of Sibsagar before whom the proceedings were brought, will proceed to dispose of them in accordance with law.
6. I agree.