K.C. Sen, J.
1. This Rule is directed against an order passed by Shri A.K. Dutta, Magistrate, 1st class, Jhargram, whereby he decided and declared that the members of the first party are in possession of the disputed lands and that they are entitled to retain possession until evicted or ousted in due course of law. Any disturbance to the first party's possession was ordered to be strictly forbidden.
2. The first party started proceeding under Section 144 Cr.P.C. in the first instance, apprehending breach of peace. Subsequently under an order of the learned Magistrate it was converted into a proceeding under Section 145. The allegation of the first party was that the disputed lands were held originally by one Bipin as Bhalluk, on whose death, the first party, opposite party No. 1 Raghunath Paul held the same as Bhalluk and as-such he and his brothers Mangobinda and Kailash and Mangobinda's son, Nalini were in actual possession of the said lands. It was also their case that although Raghunath Paul was discharged from his service as a Bhalluk, the lands continued to be in possession of himself and his brothers and that although the disputed ands had been resumed and made khas by the State of West Bengal, the Officers of the Land Reforms Department did not settle the same to them in spite of the orders passed to. settle the lands in their favour.
3. The case of the 2nd parties, who are the petitioners before me, was that the disputed lands were original held by the first party opposite party No. 1 Raghunath Paul in chakran right on account of services rendered by him as a Bhalluk. Subsequently he was discharged from service and the lands were resumed and made khas by the Govt, of West Bengal and that thereafter the Govt. through the Officers of the Land Reforms Department settled the land's with the petitioners as Utbandi tenants.
4. The contention of the second party was negatived by the learned Magistrate and in this Rule, Mrs, Diptikana Bose, the learned Counsel appearing on behalf of the second party petitioners, has urged that the order of the learned Magistrate is erroneous in law, firstly, because he examined two independent witnesses for. deciding the case in contravention of the clear provisions of proviso to Sub-section (4) of Section 145 and to Sub-section (9) of that section. Her second point is that although in a proceeding under Section 145 Cr.P.C. no restraint order can be passed, the learned Magistrate erroneously in a proceeding under Section 145 passed such an order, which is not sustainable in law. Mer third point is that the learned Magistrate referred to a letter dated the 29th February 1960 addressed by the Junior Land Reforms Officer to the Additional Collector of Midnapore for his decision, without that letter being proved according to Jaw. Her fourth submission is that the learned Magistrate misdirected himself by not taking into consideration the affidavit filed by the Junior Land Reforms Officer which' on the face of it would go to show that the contention of the first party was definitely wrong.
5. I shall take up all these points together for consideration. It will appear from the judgment of the learned Magistrate that he has taken into consideration all the aspects of the case, namely, the affidavits filed by the parties, written statements as also the additional evidence which he had recorded in this proceeding. He has come to the conclusion that the member of the first party were previously in possession and although the service rendered by some of the first party men was discontinued they still continued in possession and insisted upon the Govt. to give them a permanent settlement, HP has also disbelieved the alleged settlement in favour of the second party, made by some of the tahsildars serving under the Land Reforms Department, as it was unauthorised and as such the rent receipts granted by them could not substantiate their possession. As a matter of fact, upon consideration of all the facts and the circumstances he has come to a definite conclusion that at the date of the institution of the proceeding, the first party was really in possession.
6. Mrs. Bose has strenuously urged that the J.I.R.O's affidavit was not taken into consideration. it appears that he really took it into consideration and was of opinion that although the affidavit filed by the J.I.R.0, was to a certain extent vacillating, yet the concluding portion thereof is replete with circumstances, for a finding that really the first party was in possession. Accordingly, it cannot be said that the learned Magistrate did not take into consideration the affidavit filed by this officer. Upon perusal of all the materials in the record, it appears to me that the learned Magistrate came to a correct conclusion as to the possession of the first party.
7. As regards the point raised by Mrs, Bose that the learned Magistrate acted illegally in referring to the Junior Land Reforms Officer's letter dated 29-2-60 without that letter being formally proved, | am of opinion that the contention as raised by her is correct. The learned Magistrate has, in his judgment, referred to this Jetter dated 29-2-60 written to the Collector which was called for at the instance of the parties. This letter shows that he did not give any direction to the tahsildar for settling the lands in favour of the 2nd Party petitioners. Although he has in support of his conclusion referred to this letter, I am of opinion that the proceeding cannot on account of this fact be tainted with illegality, as this is not the only evidence on which the learned Magistrate relied upon his finding. He has in extenso dealt with other materials in the record and has also found that the procedure adopted by the tahsildar, in spite of the possession of the first party for settling the lands in favour of the second party was unwarranted and not supported by any order emanating from the appropriate authority. Accordingly reference to this letter as I have already stated without being proved, does not entirely vitiate the proceedings as contended by Mrs. Bose.
8. The next contention of Mrs. Bose is that although a proceeding under Section 145, Cr.P.C. was started, the learned Magistrate illegally passed a restraint order upon the second party. From the order-sheet of the learned Magistrate, it appears that on 23-11-59 on perusal of the police report, the learned Magistrate passed an order restraining members of both parties from going over the disputed plots and directed them to appear and show cause on 7-12-59. On 18-12-59 after the appearance of both the parties, the learned Magistrate converted the proceeding under Section 144 Cr.P.C. into a proceeding under Section 145 Cr.P.C. and in doing so, passed an order that as the case was one of emergency, the lands were attached pending decision and 0.C. Goplballavpur was directed to appoint a disinterested person as custodian of the property. In terms of this order, however, it will appear on the first blush from the records that a restraint order was passed. On a careful perusal of the receipts in the notice it appears to me that the learned Magistrate had purported to pass an order for conversion of the proceeding Under Section 144 into one under Section 145 Cr.P.C. and in doing so he has passed an order which runs as follows:
Therefore the proceedings under Section 144 Cr.P.C., are hereby converted into one under Section 145, restraining the marginally noted both party members from entering into the disputed lands....
Reading between the lines of this order It appears that the proceeding which was started under Section 144 Cr.P.C. actually restraining the parties, has been converted into a proceeding under Section 145 and not that any fresh order was passed under Section 145 Cr.P.C. restraining the parties. Therefore, on the face of It, it does not appear to me that any illegal notice was served. Even assuming for a moment that this notice was illegal, it appears that no objection thereto was raised before the learned Magistrate or before any higher Court and the factum of attachment by the learned Magistrate was taken for granted by both the parties. In the circumstances, this point as raised by Mrs. Bose also is not tenable.
9. The most important point is whether the learned Magistrate committed an illegality by examining two witnesses suo motu under Section 540 Cr.P.C. It has been stated by Mrs, Bose that the learned Magistrate examined two witnesses, Sarat Chandra Bishal, Tahsildar and Sarat Chandra Mahapatra, Amin of Goplballavpur Circle. Her reasons are that during enquiry under Sub-section (4) of Section 145 Cr.P.C. the learned Magistrate under its proviso has a discretion to summon and examine any person whose affidavit has been put in as to the facts contained therein. She has further referred me to Sub-section (9) which provides that:
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 a document or thing.
According to her this sub-section is controlled by proviso to Sub-section (4) and therefore, the learned Magistrate under the law is only restricted to examine those witnesses who have filed affidavits and that no outsider can be examined as a witness. In support of her contention she has referred me to a decision reported in : AIR1959All763 , Bhagwat Singh v. State. In this single bench decision it appears that his Lordship found that
Sub-section (9) does not confer any right upon a party to examine a person as his witness; it only lays down the procedure to be followed in procuring the attendance of its witnesses. Whether it has a right to examine a witness or not has to be ascertained from other provisions. All that the sub-sec. means is that if a party has a right to examine a witness orally, it may obtain from the Magistrate a summon directing him to attend the Court. The first proviso to Sub-section (4) is the only provision which confers a right upon a party to examine a witness orally in the Court; so Sub-section (9) must be read with the first proviso to Sub-section (4).
Further his Lordship of the Allahabad High Court observed that:
The proviso enables the Magistrate to examine orally any person whose affidavit has been put in and If a person's affidavit has been put in, he can be examined as a witness (if the Magistrate considers his oral examination necessary); but a person whose affidavit has not been put In is not allowed to be examined orally at ail.' From this decision it appears that the learned Judge of the Allahabad, High Court put great restrictions upon the discretion of the learned Magistrate to examine any outsider as a witness and has circumscribed the condition for examination of witnesses only to such persons who have filed affidavits in these proceedings. In my opinion the expression 'issue summons to any witness' does not restrict the power of the Magistrate only to call for the witnesses, who have submitted their affidavits, otherwise, the word 'any' does not carry any meaning at all. In any event, this matter need not be decided in this case, nor do I propose to discuss the correctness or otherwise of the decision made by the learned Judge of the Allahabad High Court, as It appears that the facts on which this case was decided are not similar to the facts of the present case, Inasmuch as, his Lordship found as a fact that the second party In the proceedings before the Magistrate did not at all file any affidavit but Instead only examined some witnesses. The aforesaid decision may have application to the facts of the case In which no affidavit was filed by the second party.
10. Now, the. next question for consideration is whether the learned Magistrate in examining these two witnesses as aforesaid, under Section 540 Cr.P.C. committed an error of law. The learned Magistrate,' it appears, called for the records of one miscellaneous case in which the second party members were purported to have been granted bandi settlement in respect of the disputed lands. Surprisingly enough, this record did not contain any order but only a blank order sheet was attached to some papers. For this reason he became extremely suspicious as to the genuineness of the record and accordingly called for the tahsildar and the Amin who actually made survey of the lands in dispute and are alleged to have given settlement in favour of the second party men. He has clearly said that he had adopted this procedure for some compelling reasons under Section 540 Cr.P.C. for the ends of justice. He has found after examination of these two witnesses that neither of them at the time of the survey could come to any conclusion as to which party was in possession and therefore he was compelled to pass an order to the effect that in the absence of any iota of evidence regarding the settlement in favour of the second party, the first party's possession cannot, in any view of the matter, be disturbed. Mrs. Bose contends that as the provisions In Section 145 Cr.P.C. are self-contained regarding the examination of witnesses, resort to Section 540 Cr.P.C. was absolutely unwarranted. Section 540 Cr.P.C. contemplates that:
Any Court may, at any stage of any enquiry, trial or other proceedings under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.
In this section the expression 'other proceedings under this Code' has been used. This shows that the proceedings started under Section 145 Cr.P.C. cannot be exempted from the operation of this section. The first part of this section which is discretionary enables a Court at any stage to summon any one as a witness and this inherent jurisdiction of the Magistrate, in my opinion, cannot be said to be taken away in a proceeding under Section 145 Cr.P.C. because of the proviso (1) Sub-section (4) of Section 145 and Sub-section (9) of that section. In my opinion, for the ends of justice, the learned Magistrate can in such proceedings as well examine any witness whom he thinks most desirable to examine for the purpose of eliciting the truth relating to the controversy existing between the parties. Accordingly, this contention as raised by Mrs. Bose does not also succeed.
11. The last contention as made by Mrs. Bose is that the learned Magistrate committed an error by taking into consideration some decisions in some previous 145 Cr.P.C. cases. The learned Magistrate clearly said that they ' were not admissible as they were not inter partes and as such it cannot be stated that he used those decisions for the purpose of coming to his Conclusion that the first party was in possession. This contention as raised by Mrs. Bose Is also not of any substance.
12. In the circumstances, the petitioners will not succeed and the Rule shall stand discharged. The order of the learned Magistrate is affirmed.