P L D 1967 Dacca 541 (PLP)

In this case a Rule Was issued on the Deputy Commissioner of Dacca and the opposite‑parties to show cause as to why the order made by the Magistrate declaring possession of the 2nd party in the disputed land in the proceeding under section 145 of the Criminal Procedure should not be set aside. The only point raised by Mr. S. K. Bose, learned Advocate appearing for the first party petitioner is that he has been greatly prejudiced for not being given an opportunity to produce and examine his material witnesses who should have proved actual possession in the disputed land and as such the impugned order should be set aside. On a reference to the Magistrate's order, it appears that the Magistrate gave sufficient opportunity to both the parties to adduce evidence in the proceeding. The order dated 14‑2‑63 is in the following terms: "Examined 5 more witnesses of the 1st party today. Evidence of 1st party is closed. To 27‑3‑63 for evidence of 2nd party." On 27‑3‑63, the Magistrate examined five witnesses of the 2nd party and adjourned the case to 29‑4‑63 for examining the remaining witnesses of the 2nd party by enforcing the presence of the witnesses against whom warrant of arrest was issued. When the case was taken up for bearing on 29‑4‑63, it had to be adjourned as the records were called for by the Additional District Magistrate. When the records came back, the Magistrate fixed 18‑7‑63, for the examination of the remaining witnesses of the 2nd party. For the first time on 18‑7‑63, the Magistrate was asked to reopen the evidence of the first party petitioner to enable him to produce certain documents and examine his witnesses. The learned Magistrate in a well reasoned order rejected the prayer. On 23‑8‑63 when the case was again taken up for argument the petitioner virtually refused to proceed with the case on the ground that he was not ready with his documents. It is not understood why he was not ready on the date of bearing. On 23‑8‑63, the Magistrate, however, adjourned the case to 19‑9‑63, for argument with the observation that no further time would be allowed. On 19‑9‑63, the petitioner again filed a petition saying that a civil suit had already been instituted and as such the proceeding under section 145 should be dropped. The Magistrate rightly rejected this prayer. After having made a preliminary order under subsection (i) of section 145 of the Code of the Criminal Procedure, the Magistrate was bound to make a final order as required under subsection (5) of section 145, unless he was satisfied that the preliminary order was to be cancelled for some grounds. If the Magistrate was satisfied that apprehension of breach of peace still existed and there was dispute over the possession of a specified property, there was no reason for him to drop the proceeding, simply because a civil suit had been instituted. The proceeding under section 145, as has been clearly pointed out by the learned Magistrate, relates to the maintenance of public peace, whereas civil suit would establish right, title and interest. I have already said that the only point pressed before me is refusal to give opportunity to the petitioner to adduce further evidence. The circumstances stated above, fully justify such refusal and I find no reason whatsoever to interfere with the order of the learned Magistrate who reasonably exercised his discretion in the matter. For the reasons stated above, the petition is rejected and the Rule is discharged and the order of stay is vacated. K. B. A. Rule discharged.