Information under section 145 Cr.PC was given to the Magistrate by the Police on the complaint of the 1st party. While passing orders u/s 145(1) Cr.PC the Magistrate arrayed the complainant as the 1st Party and the accused (against who are the allegations of forceful, illegal and wrongful dispossession of the 1st party) was arrayed as the 2nd party. The matter is pending before the Magistrate since July, 2002 and was remanded back in May 2003 to the Magistrate by the Sessions Court to pass fresh orders in light of the observations made. “Keeping in view the above provision of Cr.P.C. the learned Magistrate can not be said to have acted within the provisions of Sec. 145 Cr.P.C. which has prescribed its procedure. In my view both the parties require opportunity to file their oral evidence in regard to the actual possession over the property in dispute. The law of equity and justice demand that both of the parties shall lead evidence in this proceeding. No finality could have been given to the proceedings U/S. 145 Cr.P.C. because violation of the procedure contained in this section. The impugned order, as such deserves to be set aside and the case deserves to be remanded back to the lower court for providing opportunity to both the parties to adduce their evidence and thereafter judgment be pronounced.” On most of the dates of the hearing of the case, the matter gets adjourned and majority of the adjournments are due to the fact that the Magistrate was not available for hearing and being busy in other administrative work as the Magistrate is also responsible for the law and order of the city being the City Magistrate in the capacity of Administrative Magistrate. The above case under section 145 Cr P C is yet to be decided and FINAL JUDGMENT is yet to be passed as the proceedings are presently going on (ex-parte against the 2nd party) because the 2nd party failed to appear for one particular hearing (although have been appearing in most of them) and the Magistrate passed the orders to proceed ex parte against the 2nd party. The impact of this order is that the 2nd party which was required to opportunity to file oral evidence in regard to the actual possession over the property in dispute, can no more lead oral evidence. As per observations of the Sessions Court while remanding back the case, “The law of equity and justice demand that both of the parties shall lead evidence in this proceeding. No finality could have been given to the proceedings U/S. 145 Cr.P.C. because violation of the procedure contained in this section” the matter cannot proceed without the presence of any of the parties. 2nd party filed application to recall the ex-parte orders. The 1st party has placed objections on the grounds that there is no provision in the Cr. P. C which empowers a Magistrate to recall his own orders. If that be the case, the Magistrate shall now have to complete the enquiry and decide under section 145 (4) of the Cr.PC only on the basis of the oral evidence of the 1st party and in the absence of the 2nd party as to which party was in possession of the disputed premises on the date provided under the section 145 Cr.PC. Will this process fall under the observations given by the Sessions Judge while remanding the case and also shall this be within the provisions of Section 145 Cr.PC? Under these circumstances, can the Magistrate reject the application of the 2nd party filed requesting recall of the orders to proceed ex-parte against the accused (2nd party) and then proceed and complete the inquiry without giving the opportunity to lead oral evidence to the 2nd party and only on the basis of the oral evidence lead by the 1st party? If yes, on what grounds?
