1. This Rule is directed against an order passed in a proceeding under Section 145, Criminal Procedure Code, by which the opposite party--the second party in that proceeding--was declared to be entitled to remain in possession of the land in dispute. The Rule was issued on two grounds only: (1) that the Magistrate was wrong in refusing an opportunity to the first party to examine one Babu Mon Mohan Ray Chowdhry as one of his witnesses and (2) that the Magistrate was wrong in law in refusing to examine nine witnesses for the first party who were present in Court and tendered for examination on the 3rd August, 1928.
2. As regards the first ground, it appears that Babu Mon Mohan Ray Chowdhry was cited as a witness by the first party and processes were issued against him on as many as three occasions; first of all, on the 23rd March, then on the 25th April and, for the third time, on the 18th June 1928, it appears also that, when Babu Mon Mohan Ray Chowdhry in spite of all these processes against him did not on the ground of illness attend the Court to give his evidence, the first party applied to the Magistrate for action under Section 506, Criminal Procedure Code for the issue of a commission for his examination. This application made by the first party was rejected by the trying Magistrate; and it was said that herein the learned Magistrate went wrong--the contention being that, after the Magistrate had issued processes for the attendance of Babu Mon Mohan Ray Chowdhry, he was bound to proceed under Section 506, Criminal Procedure Code when Babu Mon Mohan Ray Chowdhry could not, attend Court on the ground of illness. But before it becomes incumbent on a Magistrate to take action under Section 506, Criminal Procedure Code there is another condition that has to be fulfilled, and that condition is that it must appear that the evidence of the witness is necessary for the ends of justice. The learned Magistrate refused the application on the ground that he did not consider the evidence of Mon Mohan Babu essentially necessary. Tie question, therefore, is whether the Magistrate was justified in holding that the evidence of Mon Mohan Ray Chowdhry was not necessary for the ends of justice. On behalf of the petitioner, a considerable amount of stress was in this connection laid of the fact that the Magistrate had issued summons against Babu Mon Mohan on as many as three occasions and it was said that this fact was a clear indication that according to the learned Magistrate, the evidence of this witness was necessary. But the record shows that subsequent to the 18th of June, 1928, when the third summons was issued against Mun Mohan Babu, certain facts were disclosed before the Magistrate which, in my opinion, were sufficient to justify him in changing his opinion about the matter. On the 11th July 1928, a petition was filed by Babu Man Mohan Ray Chowdhry in which he in a way admitted, that he knew nothing about the recent possession of the land in dispute and, in the deposition which the petitioner Dinabandhu Banikya himself gave on the 2nd August, he made statements to the effect that Mon Mohan Babu would not be able to depose to any facts beyond what had taken place some seven years before the date of the proceedings. The evidence of the witnesses who were examined on behalf of the first party on the 2nd and 3rd of August on the question of actual possession was, moreover, extremely unsatisfactory. The evidence which Babu Mon Mohan Ray Chowdhry might give might be perfectly relevant; but the facts which were disclosed by the petition of Babu Mon Mohan Ray Chowdhry himself on the 11th July and the deposition of the petitioner himself on the 2nd August were, in my opinion, sufficient to justify the Magistrate in holding that the evidence of Mon Mohan Babu was not so necessary as would make it incumbent on him to take action under Section 506, Criminal Procedure Code, especially remembering that the proceeding was one under Section 145, Criminal Procedure Code--the object of which is to bring to an end by a speedy and summary process disputes relating to land, etc. I am, therefore, of opinion the there was nothing wrong in law the lear(sac) Magistrate's refusal, in the circumstance of the case to take action under Section 506, Criminal Procedure Code.
3. As regards the second Wound, namely that the learned Magistrate was wrong in refusing to examine the nine witnesses of petitioner who were present in Court on the 3rd August, I am of opinion that it is equally unsustainable. It appears that, on the 2nd August, 1928, when tae enquiry commenced, the petitioner had nine witnesses altogether for examination. Out of these nine, five were examined of that day and the remaining four were examined on the day following, namely, the 3rd August 1928. The nine witnesses the non-examination of whom has been made a ground of complaint before us were all new witnesses and it was on the 3rd August that a hajira of these nine new witnesses was filed for the first time. The learned Magistrate in his explanation says that the petitioner's lawyer has not pressed upon him the necessity for the examination of these nine witnesses. That this was so would appear from the fact that the petitioner never made a grievance of the non-examination of those nine witnesses before the Sessions Judge to whom the matter had been taken before the present Rule was issued. In these circumstances, I am of opinion that the learned Magistrate did nothing wrong in law when he refused to examine those nine new witnesses produced before him by the first party for the first time on the 3rd August, 1928. The second ground, therefore, also fails.
4. In the result, the Rule is discharged.
5. I agree.