IBRAHIM KHALIL vs SAMIUDDIN AND 3 Other
This matter arises from a petition for special leave to appeal against the dismissal of a revision petition by the High Court, which had declined to interfere with a Magistrate's final order passed in ex parte proceedings under section 145 of the Code of Criminal Procedure 1898. The core legal question was whether the petitioner, who admitted having notice of the dates of hearing and the ex parte order but deliberately chose not to appear or cross-examine witnesses, was entitled to challenge the final order passed after the conclusion of evidence. The Supreme Court held that the petitioner was grossly negligent and could not make any grievance against the Magistrate's order, as the final order had already been lawfully passed before his belated appearance. The ratio decidendi is that a party who fails to participate despite due notice and allows ex parte proceedings to conclude cannot subsequently claim a right to reopen the case or cross-examine witnesses, and their proper alternative remedy lies in instituting a civil suit.
- Whether a party having notice of ex parte proceedings and failing to appear can challenge the final order of a Magistrate?
- Can a party demand permission to cross-examine witnesses after the final order in proceedings under section 145 of the Code of Criminal Procedure 1898 has already been passed?
- What is the appropriate remedy for a party aggrieved by an ex parte order passed under section 145 of the Code of Criminal Procedure 1898 when revision and reference are refused?
- Section 145, Code of Criminal Procedure 1898
- Section 435, Code of Criminal Procedure 1898
- Section 438, Code of Criminal Procedure 1898
1. HAMOODUR RAHMAN, C. J.-At the instance of the respondents Nos. 1 to 3 herein an ex parte proceeding under section 145 of the Code of Criminal Procedure was drawn up on the 10th of November 1961, against the petitioner and seven others anti show-cause notices were issued on them. The land was attached and a Receiver was appointed. The petitioner filed his written statement on 19th March 1965, but the case somehow dragged on till the 10th of October 1968, when three witnesses were examined on behalf of the respondents. The petitioner had notice of this date but did not appear even though there was an earlier order that the case would proceed ex parse in his absence. He allowed the evidence of these witnesses to go unchallenged. The case was then adjourned to 26th October 1968, but again the petitioner did not appear and the Magistrate passed a final order declaring the possession of the said respondents and discharging the receiver appointed earlier.
2. After the passing of the order the petitioner appeared and filed a petition for permission to cross- examine the witnesses and to adduct' evidence on his behalf, but as the Magistrate bad already passed the final order, he rejected this petition stating that he had already passed the final order.
3. The petitioner then moved the Sessions Judge, Chittagong, under sections 435 and 438 of the Code of Criminal Procedure, requesting him to make a reference to the High Court for the quashing of the order of the Magistrate. In view of the above facts the Sessions Judge refused to make the reference. The petitioner then came directly to the High Court by way of a revision petition. The High Court also refused to interfere. He now seeks special leave to appeal.
4. Learned counsel appearing on behalf of the petitioner admits that he had notice of all the dates fixed by the Magistrate as also of the order for ex parte hearing, but says that he did not appear on the earlier dates, because, those dates were fixed only for the examination of the respondents' witnesses. He appeared, however, on the last date. He was a little late but he asked for permission to examine the witnesses. This permission was refused.
5. It is clear -from the above that the petitioner was clearly negligent in not appearing on the previous dates and cross---examining the witnesses as they gave evidence. His appearance on the last date was also belated. The petition was put in after the final order had been made. In the circumstances, he cannot make any grievance against the order of the Magistrate. He has himself to thank for whatever has happened.
6. His remedy now lies in filing a civil suit and getting a receiver appointed immediately. There is no ground for inter--ference in this case more. This petition is, accordingly, dismissed.