1. This is a Reference made by the Sessions Judge of Midnapore at the instance of the first party in a Section 145, Cr. P. C., proceeding. This first party was called upon to adduce evidence on more than one occasion and repeated dates were given to come with his evidence to establish allegations about possession and likelihood of a breach of the peace. I fail to see that if in spite of this the first party does not come forward to give evidence what else can the Magistrate do but to hold the allegations as not establisned and therefore take no further proceedings in the matter or in other words, as the learned Magistrate curtly wrote 'drop proceedings'. A decision of the Patna High Court reported in -- Trilochan Das v. Jogeswar Das', AIR 1919 Pat 37 (A) was shown to me hut in it no reason was given for holding the learned Magistrate's order directing the proceedings to be struck off as without jurisdiction. The first principle of the Evidence Act is that a party who is to prove an allegation must do so. The Court cannot imagine evidence in the absence of it. If there is no such evidence given by the party on whom the onus is to give evidence, I fail to see why a Court has got no jurisdiction to dismiss a case of the party who does not discharge the onus that is upon it or in other words, as it has been said by this Magistrate, 'drop proceedings'. Dismissal would be an exercise of ordinary common sense. No section of the Criminal Procedure Code need be cited for it.
2. Under the circumstances, the order ofthe learned Magistrate was right except thathe should have dismissed the application. TheReference is rejected.