Gobardhan Das vs Ramautar Dhanuk

Kamla Sahai, J.—A proceeding u/s 147 of the Code of Criminal Procedure was drawn up under an order passed on the 7th October, 1958, at the instance of the first Party, who is the petitioner before me. A pleader commissioner was subsequently appointed to hold local inspection and to report. The Magistrate heard the parties after submission of the pleader commissioner''s report, and, by his order dated the 9th January, 1960, he has come to the conclusion that the pleader commissioner''s report showed that the space in question between the parties could not have been used as a pathway. On the basis of this conclusion, he dropped the Proceeding. The first party has moved this Court against that order.

The point which Mr. Ghosal, who appears on behalf of the petitioner, has taken is that the learned Magistrate should have taken the evidence of the parties as required by Sub-section (1A) of Section 147 and thereafter concluded the proceeding. His contention also is that the pleader commissioner''s report should not have been taken into evidence and considered until the pleader commissioner was examined in Court.

It seems to me that a Magistrate, who draws up a proceeding u/s 147, may drop it in certain circumstances even before he has taken the evidence of the parties; but, in so far as this case is concerned, I am of opinion that the Magistrate has acted wrongly. It has been held by a Bench of this Court in Chulai Mahio and Others Vs. Surendra Nath Chatterji and Others, in connection with a proceeding u/s 145 that a pleader commissioner''s report cannot be taken into evidence without calling the pleader commissioner. The procedure laid down in Section 145 has been altered by the recent amendment; but the procedure applicable to a case u/s 147 is the same as that in a proceeding u/s 145 before the amendment. This decision is, therefore, applicable in the present case.

For the reason given above I am of opinion, that the Magistrate has wrongly dropped the pro ceeding. This application is, therefore, allowed, and the learned Magistrate''s order dated the 9th January, 1060 is set aside.