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Bande Ali Vs. Rejaullah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal263,76Ind.Cas.975
AppellantBande Ali
RespondentRejaullah and ors.
Excerpt:
- .....to fetch the mukhtear, he was not available. the petitioner did neither examine himself nor did he examine the witnesses whose names were mentioned in the hazira. the learned honorary magistrate in his explanation states that he waited for full 20 minutes and that then proceeded to take evidence of the witnesses on behalf of the second party. taking all the circumstances into consideration, we think that the petitioner should be given an opportunity of adducing evidence in support of his claim. no doubt the petitioner was to blame in a certain measure. but the proceeding under section 145, criminal procedure code being a (quasi-civil proceeding, the circumstances of this case, in our opinion, justify us in exercising our discretion in favour of the petitioner in making the rule absolute......
Judgment:

1. This Rule was issued in a matter of 145 proceedings which had been decided ex-parte in the absence of the first party. It appears that on the date the case was fixed for hearing, a hazira or a list of attendance of witnesses was filed by the first party. At the moment the case was called on, the Mukhtear who was engaged by the first party was absent and was arguing a case in another Court. The petitioner went to fetch his Mukhtear. The Mukhtear could not come and it appears that on the second occasion when the petitioner went to fetch the Mukhtear, he was not available. The petitioner did neither examine himself nor did he examine the witnesses whose names were mentioned in the hazira. The learned Honorary Magistrate in his explanation states that he waited for full 20 minutes and that then proceeded to take evidence of the witnesses on behalf of the second party. Taking all the circumstances into consideration, we think that the petitioner should be given an opportunity of adducing evidence in support of his claim. No doubt the petitioner was to blame in a certain measure. But the proceeding under Section 145, Criminal Procedure Code being a (quasi-civil proceeding, the circumstances of this case, in our opinion, justify us in exercising our discretion in favour of the petitioner in making the Rule absolute. We set aside the proceedings and direct that the proceedings do continue after giving the petitioner as well as the second party suitable opportunities of adducing evidence in support of their respective claims.

2. The Rule is made absolute on those terms.


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