1. This is a revision petition against the order in Miscellaneous No. 16 of 47-48 dropping the proceedings under Section 145 Criminal Procedure Code, on the ground that both the parties are absent.
2. The proceedings were instituted on 18-11-1947 and it is in March 1951 that the proceedings were dropped on the ground referred to above. A perusal of the order sheet shows that the case was not taken up as the Judge was busy with other cases or for the reason that one or the other of the lawyers wanted an adjournment. It is unfortunate that these proceedings were allowed to be dragged on for about three years and it is equally unfortunate that the learned Magistrate should have found a way of disposing of the case in a summary manner, particularly when the learned Magistrate had no jurisdiction to drop the proceedings under Section 145, Criminal P.C. as he has done.
3. This case is typical of a good number of cases under Section 145 Criminal P.C. that are pending for a number of years after preliminary orders under that section. Though the provision of law under this section is intended for quick disposal of such cases, the reason for the pendency of such cases for an unduly long time is partly due to the lack of understanding as to what the Court has to do when parties do not help in the quick disposal of cases of this nature. The decisions on the point are sometimes conflicting as can be seen in any commentary on the Code of Criminal Procedure under Section 145. Some decisions go to the length of holding that the Magistrate is bound to manage to record some evidence before any final order under Section 145, Criminal P.C., or under Section 146 could be passed though the parties may not have adduced any evidence. It is desirable to analyse Sections 145 and 146, Criminal P.O., and consider how the Magistrate has to proceed in case the parties fail to co-operate in the speedy disposal of cases of this nature. Section 145 is as follows :
'(1) Whenever .......... a Magistrate of the First Class is satisfied ...... ..that a dispute likely to cause a breach of the peace exists concerning any land ...... within the local limits of his jurisdiction, he shall make an order in writing, stating toe grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by Pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(4) The Magistrate shall then ........ peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties at the date of the order before mentioned in such possession of the said subject :
(5) Nothing in this section shall preclude any party...... from showing that no such dispute-as aforesaid exists or has existed; and in such-case the Magistrate shall cancel his said order.
(9) The Magistrate may, if he thinks fit, ..... issue a summons to any witness directing him to attend or to produce any document or thing.'
Section 146 states that 'If the Magistrate .... is unable to satisfy himself as to which of them was then in possession of the subject-matter of dispute he may attach it. In the first place it will be noticed that the Magistrate shall in the preliminary order in writing state the grounds for being satisfied that a dispute is likely to cause a breach of the peace exists and shall require the parties concerned in such dispute to attend his Court in person or by Pleader, within a time to be fixed by him and to put in written statements of their respective claims. Supposing the parties do not appear before the Court at ail, has the Magistrate power to compel the attendance of parties? As observed in the case reported in 'Kefatullah v. Feruzuddin', 5 Cal WN 71, the Magistrate has no jurisdiction to issue a warrant to compel the attendance of a party in such proceeding. Similarly the section does not enable him to compel the parties to file written statements. He is, however, bound to issue a notice calling upon them to appear before Court and to file statements within a time fixed by him. He may in proper cases give more time to file statements. The discretion to extend time must be exercised judicially. The parties however have no right under the section to obtain time and to hold that the Magistrate cannot pass any order unless statements are filed would place the Magistrate under the mercy of the parties. If the parties do not appear or if they appear and do not file written statements within time fixed or within such time as the Court in its discretion extends, nothing comes in the way of a Court passing an order straightaway under Section 146, Criminal P.C., in such a case he is unable to satisfy himself as to which of the parties was in possession of. the subject-matter of the dispute. He cannot, how ever, pass an order under Section 145, Criminal P.C., unless he has material to come to the com elusion that one of the parties is in possession on evidence taken by him, if such a course is found possible and feasible, though the parties have failed to file any statements and to adduce evidence. However, as observed in 'Bejoy Madhu v. Chandranath', 5 Ind Cas 40 (2) (Cal) :
'In a ease under Section 145 of the Criminal Procedure Code, neither party filed written statements or adduced any evidence, and an interval of more than two months had elapsed from the date of the initiation of the proceedings, and the Magistrate attached the land in dispute under Section 146 : Held : that the order was not without jurisdiction.'
But if only one of the parties files a written statement and the other docs not within the time fixed by the Magistrate and the parties or at least one of them are ready to adduce evidence nothing comes in the way of the Magistrate in proceeding with the case on the material available. All the Magistrate is bound to do is to issue a notice requiring the parties to appear before Court, to file their written statement and to adduce evidence. While he cannot refuse to take any written statements that may be filed by the parties, he is not bound to extend time for that purpose to enable them to do so. As observed in 'Ramjharia v. Piar Koeri', AIR (10) 1923 Pat 369 :
'If a party fails to put in a written statement that would not take away the jurisdiction of the Magistrate to proceed, with the case. The proceeding being properly initiated it was incumbent on the Magistrate to make the enquiry and to take such evidence as the parties offered irrespective of the fact that one or other of the party failed to put in a written statement. The Magistrate would not be justified in refusing to proceed with the case because the parties neglected to file a written statement on the date fixed; he has to take evidence, if offered by any of the parties and to decide the case upon such evidence.'
According to Section 145, Criminal P.O., if parties appeared and filed their written statements, the Magistrate shall then peruse the statement so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take further evidence, if any, as he thinks necessary and proceed to orders. It may be noticed that under Clause (1) of Section 145, Criminal P.O., the Magistrate may, if he thinks fit, issue summons to any witness directing him to produce any document. It is clear that while the Magistrate was bound to receive all such evidence as may be produced he cannot compel the parties to adduce evidence. While he can give reasonable adjournments, he is not bound to go on adjourning the case till both the parties close their cases. After all the proceedings under Section 145, Criminal P.O., are not intended to finally settle the disputes between the parties. This could be done only by the Civil Courts. In fact very often the order that is passed in the proceedings under Section 145, Criminal P.O., is by a Magistrate of the grade of a Subordinate Judge, while a suit concerning the dispute may be filed in the Court of a Munsiff. It is essential therefore that the case is intended to be disposed off quickly. It has been held in 'Manmatha Nath v. Baroda Prasad', 31 Cal 685 :
'Where in a proceeding under Section 145 Criminal P.O., the trying Magistrate refused to examine certain witnesses on behalf of one of the parties, who were present in Court, held Magistrate's refusal is in direct contravention of the provision of law contained in Clause (1) Section 145 of the Criminal P.O. which says that the Magistrate 'shall receive the evidence produced.'
But. in that decision it was equally observed :
'This is not a case in which the Magistrate in the exercise of his discretion declined to grant an adjournment to enable a party to reduce evidence after he has already had an opportunity of doing so.'
The proper procedure for a Magistrate, therefore, is to post the case for evidence and to record the evidence of all witnesses present on that day and in case all the witnesses are not examined to take up the case on the very next day and proceed to orders. It does not mean that no adjournment could be given to enable the parties to adduce evidence in proper cases. But considering the nature of the proceedings the Magistrate would do well to exercise the discretion in granting adjournments only in proper cases. If parties or any one of them do not appear before Court and adduce evidence even after having one or two chances, the Magistrate is at liberty to consider the evidence available and to pass an order under Section 145 Criminal P.O. However, if no evidence is forthcoming even after one or two chances are given, nothing comes in his way of passing an order under Section 148, Criminal P. C., since he is in such cases unable to satisfy himself as to which of the parties was in possession of the' property in dispute.
4. It is no doubt open to a Magistrate to examine some Court witnesses, if he has any material to think that any particular person is able to help him to decide who is in possession of the property. I do not think, there is anything in the section which compels the Magistrate to do so when he has no material to think that any particular person can help him. Section 145, Criminal P.O., Clause (4) enables the Magistrate to take such evidence as he thinks necessary, or but it does not cast an obligation on him to investigate the matter and get some kind of evidence even when the parties fail to do so. It will be noticed that Clause (4) of Section 145, Criminal P.O., merely refers to his taking 'further evidence (if any) as he thinks necessary.' The words '(if any)' make it clear that he might do so in such cases in which he has material to say that it is necessary to do so.
5. At the same time it must be remembered that unless there is material for the Magistrate '.if possible, to decide whether any or which of the parties was at the date of the order before mentioned in such possession of the said subject' he cannot pass an order under Section 145, Criminal P. C., merely because the parties are absent and have failed to adduce evidence. As observed by Ramachandra Bao, J., in 11 Mys L Jour 361:
'Where on the date on which a case has been posted for evidence, neither party appeared in Court, the Magistrate on perusal of the written statements filed by both the parties, declared the first party to be in possession; Held, that the Magistrate had no jurisdiction to pass an order under Section 145, Criminal P.C., without any evidence.'
The learned Judge has referred to a number of cases to support that an order under Section 143, Criminal P.C.. cannot be passed without evidence. There can hardly be any doubt that it is so. It may however, be mentioned, that the decision in 'Sheobalak Rai v. Bhagwat Pandey', 40 Cal 105, referred to in that decision is not a case of an order passed under Section 145, Criminal P.C., which was under consideration in '11 Mys L Jour 361. In '40 Cal 105', Holmwood and Imam, JJ., were considering the propriety of a Magistrate having passed an order under Section 146, Criminal P.O. in a case where no evidence had been adduced by either of the parties. It was observed as follows :
'The law lays that it is only if the Magistrate decides that none of the parties was then in such possession or is unable to satisfy himself as to which of them was in such possession, he can attach the property, and it is perfectly clear that he cannot say he is unable to satisfy himself if he has never made the slightest effort to do so. He had only to send a Kanungoe out to the spot and take his report, or send for the headman of the village and ask him what the facts were, he would have then fully armed himself with jurisdiction, but he did nothing of the kind, and the ease can be clearly distinguished from 'Bejoy Madhub v. Chandranath', 14 Cal WN 80, where the Magistrate said that he was unable to satisfy himself. (2) He does not even say that he has had the slightest difficulty. His order is as follows : 'No evidence produced by either side, lands attached under Section 146.' Whatever view, therefore, be taken of the rulings, that order is clearly incompetent and without jurisdiction.'
With great respect, I am inclined to think that the judicial officers are not bound to investigate and find out who is in possession of the property if the parties interested in doing so do not care to adduce evidence. In fact very often the Patels and the Shanbogues side one party or the other and to take the evidence of these witnesses without the cross-examination of the parties, might possibly be dangerous and no useful purpose could be served. As has already been pointed out, the words 'if any' in Clause (4) of Section 145, Criminal P.O., make it clear that it is not obligatory on the part of the Magistrate to record evidence of witnesses that could be thought of by him. Clause 4 of Section 145 Criminal P.O., refers to his taking further evidence which makes it clear that the necessity to such evidence as might be suggested by him might arise only after the parties adduce some evidence, Judges are not prevented from examining Court witnesses in proper cases and the provisions made in Clause (4) of Section 145 Criminal P.C., is only analogous to this. It may be said here that I am inclined to think that it is with the idea of preventing Magistrates from holding roving enquiries in proceedings of this kind, that it is stated in Sections 145 and 146 Criminal P.O., that the Magistrate may, if possible, decide who is in possession of the property and if this is not possible, to attach the property under Section 146, Criminal P.C. (6) It is clear that in this ease it was open to the learned Magistrate to have passed an order under Section 146 Criminal P.C. Considering that both the parties were absent that would have been a proper order which he had jurisdiction to pass, but the Magistrate acted illegally in dropping the proceedings on the ground that the parties were absent. This he can only do under Clause (5) of Section 145 Criminal P.O., that is, when any of the parties show that no such dispute as contemplated in Clause (1) of Section 145 Criminal P.C., exists or has existed. The observations of Rao Bahadur Krishna Rao, C.J., and Chandrasekhara Aiyar, J., in the case reported in '18 Mys CCR 104 are applicable to this case.
'It is obvious from the particulars set forth above that none of the Magistrates through whose hands the case passed seems to have realised the gravity of the matter, and that in particular the Magistrate who handled it in its earlier stages showed an utter absence of a sense of his responsibility and a rooted unwillingness to tackle a matter, however grave, which might entail personal trouble and effort, that very seriously detract from his efficiency as a Magistrate. We are aware that Magistrates are as a rule somewhat dilatory in regard to proceedings under Chapter XII of the Criminal Procedure Code; and, as observed by the Sessions Judge, instances are not wanting where the lack of promptness on their part has led to bloodshed and other-serious disorders. That no such untoward result has so far happened in the present case is a matter for which certainly neither of the Magistrates be-fore whom it was pending can take any manner of credit. We take this opportunity of impressing upon all Magistrates competent to take action under Chapter XII the great importance of promptitude and decision in dealing with ii class of cases in regard to which, as affecting the public security, the law has framed a special set of provisions........ But it is one tiling to allow that a Magistrate is competent to stay proceedings if he has information from any source justifying such stay, and quite another thing to say that in the absence of adequate data of any kind a Magistrate may suspend an inquiry duly started with the passing of his preliminary order under Sub-section (1) and go about seeking to elicit information as to the chances of a possible cessation of the original state of things. Such a course is opposed to the spirit of Sub-section (5), which makes the preliminary order final unless the parties concerned or any other persons interested succeed in showing that no such dispute as aforesaid exists or has existed; and it will merely unduly protract the inquiry and defeat its real object, as illustrated by the facts of this case.'
It is clear that in this case the Magistrate was wrong in dropping the proceedings on the ground that both parties were absent, there being no material for him to hold that no such dispute asis mentioned in Section 145 Clause (1) exists onexisted. The Revision Petition is allowed and theorder of the learned Magistrate is set aside. Thecase will be restored to file and the learned Magistrate will dispose of the case very early in thelight of the observations made above.
6. Revision allowed.