Decided on January 07,1958

Shanu Mea Appellant
Nandu Mea And Ors. Respondents


J.N. Datta, J.C. - (1.)THIS is a Criminal reference by the learned Sessions Judge, Tripura under Section 438 of the Criminal Procedure Code, which must be accepted.
(2.)THE circumstances giving rise to the reference may be briefly stated thus: On the complaint of the present petitioner and after considering the report made by the Police after enquiry, the Sub -Divisional Magistrate, Udaipur, took action under Section 145, Sub -section (1) of the Criminal Procedure Code as It stood before the amendments Order 1955 (Act No. 26 Order 1955). The case was fixed for examination of witnesses Order 3 -12 -1955.
On that date the learned Magistrate dropped the proceedings as the petitioner was absent, and had therefore failed to prove his case. But the order sheet of that date also shows that an application for adjournment was filed on behalf of the petitioner but because it was not supported by a medical certificate, the Magistrate refused to act on it.

An examination of that application shows that it was filed Order 3 -12 -1955, but there is no endorsement to show, who actually filed it. It bears the signature of the counsel of the petitioner also, and in the circumstances, it would not be unreasonable to presume that the petition was presented by the counsel.

But still we are at sea, as to whether it was presented at the time the case was called on for hearing, i.e., whether the counsel was present then or it was presented before that, the counsel remaining absent when the case was actually called on for hearing. The order sheet is unhappy in that respect, as it does not record and show these details. The necessity of recording these matters correctly cannot be emphasized too much, for on them may depend the decision of some important point.

It is not enough to say that a party is present, because that party may consist of more than one person and all of them may not be present. Again in some proceedings, it may be permissible for the agent or counsel of that party to represent him, or the Court may permit in some cases appearance by a counsel. A correct picture cannot therefore be conveyed by merely stating that such and such party is present.

Precision in recording such matters is therefore absolutely necessary so that there may be no room for mistake or misunderstanding. It is thus obvious that a complete and correct picture can only be conveyed if care is taken in recording these details, and it is clearly mentioned which party is or parties are present in person and which by or with counsel.

(3.)THE explanation of the succeeding Magistrate also does not throw much light but goes to show that one witness of the petitioner and two members of the second party were present Order 3 -12 -1955. The learned Sessions Judge, who obtained that explanation should have insisted on the explanation of the Magistrate who actually passed the impugned order, but that was not done. I would have insisted on it, but for the fact, that it would mean a further waste of time, without in any way affecting the decision.

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