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Thanuram Gogoi and anr. Vs. Tankeswar Dowera - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantThanuram Gogoi and anr.
RespondentTankeswar Dowera
Excerpt:
- .....section 145, cr. p.c. were drawn up on the petition of the 1st party (respdt.). on 8 8 1949, the learned magistrate passed a preliminary order in which he stated that a dispute likely to cause a breach of the peace existed between the parties concerning a plot of land. he also directed the parties to put in written statement of their respective claims as to the fact of actual possession. on 9 12-1949 he passed the following order : 'proceeding received. 2nd party takes no step. fix 3-1-1950 for evidence.'3. on the request of the 1st party, the case was adjourned from 3rd january to 17th february 1950. on this date, the learned magistrate proceeded ex parte; examined the 1st party & one of his witnesse- & ordered that the 1st party be restored to possession.4. on 23-2-1950, the.....
Judgment:

Ram Labhaya, J.

1. This is a reference from the Second Additional Sea. J., U. A. D., dated 21-6-1950. It arises out of proceedings Under Section 145, Cr. P.C.

2. The facts are as follows : Proceedings Under Section 145, Cr. P.C. were drawn up on the petition of the 1st Party (Respdt.). On 8 8 1949, the learned Magistrate passed a preliminary order in which he stated that a dispute likely to cause a breach of the peace existed between the parties concerning a plot of land. He also directed the parties to put in written statement of their respective claims as to the fact of actual possession. On 9 12-1949 he passed the following order : 'Proceeding received. 2nd Party takes no step. Fix 3-1-1950 for evidence.'

3. On the request of the 1st party, the case was adjourned from 3rd January to 17th February 1950. On this date, the learned Magistrate proceeded ex parte; examined the 1st party & one of his witnesse- & ordered that the 1st party be restored to possession.

4. On 23-2-1950, the petitioner (2nd Party) applied to the trial Court for reversal of the ex parte order against him on the ground that he had not received any notice & was not aware of the proceedings Under Section 145, Cr. P.C. The learned Magistral called for the records but summarily rejected the petition. Against this order a petition of revision was put in the Court of the learned 2nd Additional Ses. J., U.A.D.

5. It appears from the order of reference that the learned Magistrate summarily rejected the petition on the ground that he had lost all jurisdiction in the matter after passing of the final order Under Section 145 Cr. P.C. The learned 2nd Additional Ses. J. has stated that this view of law is not correct. He points out that the learned Magistrate should have inquired into the truth or falsity of the allegations made in the petition for letting aside the ex parte order. In support of his view he has referred to Kalicharan v. Abdul Laskar, 24 C. W. n. 902. This case supports the view which has prevailed with him.

6. The parties though served are not in attendance. As at present advised, we are inclined to follow the decision reported in 24 C W. N. 902, which lays down that where a party to a proceedings Under Section 145, Cr. P.C., prays for reopening of the case, the Magistrate should inquire into the allegations as to the absence of the service of notice, although the previous order was passed after a written return of the service of the notice.

7. In this view of the matter we must accept this reference & allow the revision petition. The order summarily rejecting the petition for setting aside the ex parte order & the revival of proceedings is set aside & the case is remanded to the learned Magistrate for disposal of the petition (for revival of the proceedings) according to law & in the light of directions given above.

Thadani, C.J.

8. I agree.


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