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Kunj Behari Das and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1936All322
AppellantKunj Behari Das and ors.
RespondentEmperor
Excerpt:
- .....say that the original mahanth died some time at the end of the year 1933 and that they appointed radha raman das as his successor on 4th december 1933 radha raman das continued to be mahanth till 28th july 1935, when he executed a document relinquishing that position. on 29th july 1935, radha raman das sent a telegram to the district magistrate and made a report to the police that he had been forcibly dispossessed. on 3rd august 1935, he made the application under section 145, criminal p.c., which has given rise to these proceedings. he said that he had been compelled by force to execute the deed of relinquishment. a police enquiry was then held and a report was made that there was a danger of a breach of the peace. the magistrate called upon the parties on 31st august to put in their.....
Judgment:
ORDER

Allsop, J.

1. This application in revision arises out of proceedings under Section 145, Criminal P.C. The present applicants claim to be the managing committee or trustees of a certain temple. They say that the original mahanth died some time at the end of the year 1933 and that they appointed Radha Raman Das as his successor on 4th December 1933 Radha Raman Das continued to be mahanth till 28th July 1935, when he executed a document relinquishing that position. On 29th July 1935, Radha Raman Das sent a telegram to the District Magistrate and made a report to the police that he had been forcibly dispossessed. On 3rd August 1935, he made the application under Section 145, Criminal P.C., which has given rise to these proceedings. He said that he had been compelled by force to execute the deed of relinquishment. A police enquiry was then held and a report was made that there was a danger of a breach of the peace. The Magistrate called upon the parties on 31st August to put in their written statements. The written statements were filed on 2nd September. The present applicants made an application on 3rd September asking that the Magistrate should issue process to summon 12 or 13 witnesses. The Magistrate on that date said that he would go and make a local enquiry on 4th September. He did this early on the morning of the 4th and he afterwards passed an order holding that Radha Raman Das had been in possession of the property up to 28th July 1935, and that he had been forcibly dispossessed. He directed that Radha Raman Das should be placed in possession of the property. The main complaint of the applicants now is that they were not given an opportunity to produce their witnesses. No order was passed on their application of 3rd September, directing that the witnesses were to be summoned, and orders were passed without the examination of those witnesses. I have been referred to the case of Chakrapan v. Emperor (1930) 28 ALJ 484.

2. A learned Judge of this Court remarked in that case that Clause (4), Section 145, Criminal P.C., threw upon the Magistrate a duty to summon such witnesses as might be mentioned to the Court by either party. As this application before me is an application in revision I do not consider that the applicants can require me to; adjudicate upon this question of law, but I am prepared to say that I have considerable doubt whether I should be prepared to follow the ruling in Chakrapan v. Emperor (1930) 28 ALJ 484. The attention of the learned Judge who decided that case was apparently not drawn to the provisions of Sub-section (9), Section 145, Criminal P.C. This sub-section is in the following terms:

The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

3. It seems to me that this sub-section loaves it entirely to the discretion of the Magistrate whether he will or will not summon any witness or witnesses. The argument placed before me seems to rest upon the supposition that in every case it is the duty of the Court to issue process to summon any witnesses whom either party wishes to summon. I do not think that there is any justification for assuming that any such principle exists. The duty of the Court in the matter of summoning witnesses is set forth differently according as the matter before the Court is an enquiry into a case triable by a Court of Session or a summons case or a warrant case, and the duty varies as between the prosecution and the accused. Under Section 208, Criminal P.C., in an enquiry into a case triable by the Court of Session, if the prosecution apply to the Magistrate to issue process he shall issue such process, unless for reasons to be recorded he deems it unnecessary to do so. When the accused is called upon for his defence ho is required to furnish a list of witnesses. The Magistrate may in his discretion summon and examine any witness named in the list in his own Court. If the accused is committed to the Court of Session the Magistrate is bound to summon the witnesses included in the list unless he thinks that they have been so included for the purpose of vexation or delay or for defeating the ends of justice, and he must give the accused person an opportunity of showing that they were not so included. During the trial of summons cases the duty of the Magistrate is much the same as it is in proceedings under Section 145, Criminal P.C. In Section 244(2), it is said that the Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

4. It is obvious to my mind that in such petty cases it is entirely a matter for the discretion of the Magistrate whether he will summon witnesses or not. Then in the course of the trial of warrant cases the Magistrate shall summon such witnesses for the prosecution as he thinks necessary and if the accused applies to the Magistrate to issue any process for compelling the attendance of any witness the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. I think it is obvious that there is no general duty upon a Court in any proceeding to issue process to compel the attendance of witnesses. Special rules are laid down according to the nature of the enquiry with which the Magistrate is dealing. In these circumstances I cannot see how it can be said in view of the wording of Sub-section (9), Section 145, that the Magistrate is bound to issue process to compel the attendance of witnesses. The real question in this matter before me is whether any serious and substantial injustice has been done to the applicants. There can be no doubt to my mind on the written statement put in by the applicants and on a document, which is not in evidence but which has been read to me in the course of arguments and on which the applicants rely, that Radha Raman Das was in possession of the property in dispute up to 28th July 1935. From the written statement it appears that Radha Raman Das's predecessor, the previous mahanth, was in possession of the property and that after his death it was managed by a committee of persons interested in the property.

5. Thereafter Radha Raman Das was appointed mahanbh. It is true that he executed the document to which I have referred above, namely the document which has been read to me and upon which the applicants rely, and that he said in that document that he would manage the property in certain ways, that is, that he would deal with it ins accordance with the views of the majority of the committee and that he would appoint a certain person to carry out the actual management under his supervision and that that person should keep accounts which should be produced and so forth. I do not think that this implies that the property still vested in the committee and not in Radha Raman Das. The question after all is not a legal question whether Radha Raman Das is to be considered to have been in possession of the property merely as an agent or in his own right. The question is who was actually in physical possession. There seems to be no real doubt that Radha Raman Das in his capacity as mahanth was in possession up to 28th July 1935. Then it is urged that he delivered possession voluntarily when he executed the deed of relinquishment.

6. In view of the fact that he made immediate protests on the very next day 29th July, and that since then there has been a dispute as to the right of possession, I think it is extremely improbable that Radha Raman Das could have voluntarily relinquished possession on 28th July 1935. This is after all not a final adjudication of the rights of the parties. An order under Section 145 is passed as the result of a summary proceeding about the possession of the parties, and the aggrieved party can always have recourse to the civil Court to establish his right. The real dispute between the parties in the present case is whether the present applicants in revision are entitled to eject Radha Raman Das from his possession as the mahanth of the temple. That is a question which can properly be agitated only in a civil Court. It seems to me that the order of the Magistrate was substantially just and there is certainly no ground to interfere with it in revision. The application is rejected.


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