Patna High Court
Dhabari Mian vs Gorakh Prasad on 16 May, 1918
Equivalent citations: 46IND. CAS.517, AIR 1918 PATNA 301(1)
JUDGMENT Jwala Prasad, J.
1. This Rule must be made absolute, The ground of grievance of the petitioner is that the learned Magistrate did not hear the arguments in the case although his legal representative wanted to be heard. The facts connected therewith are set out in paragraphs 5 and 6 of the petition before me. The Magistrate in his explanation does not deny the allegations made by the petitioner but he justifies his procedure on the ground that he "did hot consider the hearing of the argument necessary." The test is not what the Magistrate thought but what the party thought. If the party considered that the argument on his side would be beneficial to his interest the Magistrate was bound to hear him. Clause 4 of Section 145 clearly provides "that the Magistrate shall hear the parties". This includes the argument at the conclusion of the evidence on both sides as the procedure prescribed in Section 244 of the Code for summons trial. It was pointed out in the case of Hurendro Narain Singh Chowdhry v. Bhobani Prea Baruani 11 C. 762 : 5 Ind. Dec. (N.S.) 1267 that although it is nowhere declared in the Code as to whether the procedure for enquiry under Section 145 should be that of a summons case or warrant case, it is clear from the nature of the enquiry that the procedure should be regarded on all the points as that prescribed for summons cases. The wording of Section 244 relating to summons cases is almost identical with that of Clause 4 of Section 145 so far as this point is concerned. It was further pointed out in the authority quoted above that the Magistrate was wrong in refusing to hear the arguments of Pleaders and that it is not improbable that if he had heard their arguments he would have had his attention directed to the point in favour of the petitioner and probably passed a different order from what he has passed in the case. Very recently in a case of this Court Jatan Singh v. Dukhia Singh 38 Ind Cas. 434 : 1 P.L.W. 214 : (1917) Pat. 118 : 18 Cr. L.J. 322 it was held that the refusal of the Magistrate to hear the argument of the parties vitiated the final order passed under Section 145 as being in excess of jurisdiction. The order of the Magistrate is, therefore, set aside and the case remanded for a fresh decision after hearing the arguments of the parties.