Loka Mahton and Others vs Kali Singh

B.K. Mullick, J.—The petitioners are the first party in a case u/s 145 of the Code of Criminal Procedure before the Sub-Divisional Magistrate of Monghyr, Mr. Shams-ul-Huda. On the 8th February, 1927, the Sub-Divisional Magistrate held a local investigation, and he admits that in the course of that local investigation he rather lost his temper with the petitioners and used certain words with regard to some of them which perhaps were not altogether justifiable. Then on the 14th February he called upon the second party to proceed with the cross-examination of the first party''s witnesses. The second party asked for a stay of proceedings u/s 526, Clause (8) of the Code of Criminal Procedure and staled that they desired to move the High Court for a transfer. The learned Magistrate refused the prayer holding that it was not bona fide and proceeded with the trial. The petitioners declined to cross-examine the witnesses on the plea that they were unprepared. The case was adjourned till the 18th and then till the 19th on which date under compulsion, it is alleged, the second party addressed the Court with regard to the merits of their case and judgment was reserved. In the meantime application had been made to this Court; for action under e. 526 of the Code of Criminal Procedure and on the 21st February an order was issued by this Court directing the Magistrate to stay further proceedings. It appears that when the order was communicated to the learned Magistrate he had already written his judgment and signed it and that he was about to deliver it in Court. Very properly he stayed further proceedings and did not deliver the judgment.

It now appears that the Magistrate has been transferred from the district and the question is whether we should direct some other officer to deliver the judgment or order a re-trial of the case from the stage at which it was left on the 14th February.

We think on the whole that the proper course will be to direct the officer who has succeeded the learned Magistrate, or such officer as may be selected for the trial of this case by the District Magistrate, to re call the two witnesses whom the second party declined to cross-examine on the 14th August and to proceed with the trial from that stage according to law.

A point has been taken as to whether Clause (8) of Section 526 of the Code of Criminal Procedure applies to proceedings u/s 145 of the Code of Criminal Procedure. The clause as amended makes it clear that a case within the meaning of the clause includes a proceeding under s 145; but as the clause directs that the application to the trial Court is to be made either by the Public Prosecutor or the complainant or the accused, it would seem that the patties in a proceeding u/s 145 cannot take advantage of the clause. That clause would seem to apply only to cases arising out of an offence under the Criminal Law and probably the Legislature thought that proceedings which are quasi civil in nature such as inquiries into the possession of land, do not require the exercise of the very summary power which Clause (8) confers. Nevertheless I think that although the learned Deputy Magistrate was right in holding that the application under Clause (8) was not competent before him, still in the circumstances he would have exercised a proper discretion in giving the first party time to cross-examine the second party''s witnesses.

The result, therefore, is that the application for transfer being no longer necessary is dismissed, but the case is remanded to the District Magistrate in order that it may be disposed of in the manner directed, in this judgment.

Scroope, J.

I agree.