Punjab-Haryana High Court
Ranjit Singh vs Bhup Singh on 28 February, 1996
Equivalent citations: 1996CRILJ2789
Author: P.K. Jain
Bench: P.K. Jain
ORDER P.K. Jain, J.
1. Ranjit Singh has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") forquashing the order dated 30-11-1994 (Anncxure P.I), passed by the Sub-Divisional Magistrate, Hissar, under Section 138 of the Code and the order dated 14-8-1995 (Anncxure P.2) passed by the Additional Sessions Judge, Hissar, whereby the ordcr(Anncxure P.!) has been affirmed in revision.
2. The facts in brief are that Bhup Singh, respondent herein, moved an application under Section ] 33 of the Code before the Sub-Divisional Magistrate. Hissar, stating therein that he had been allotted a plot by the Consolidation Department in the year 1956 on which he had constructed his residential house. According to the averments in the application, there is a public thoroughfare in front of his said house which passage is being used by him for approaching his house, the drain water of his house and a drain pass through that lane and falls into the joharas the slant of the lane is towards the johar. It was alleged that Ranjit Singh, the petitioner herein, illegally encroached upon the shamlal land including the thoroughfare in question, as a result of which the water collected to the extent of five to six feet due to which the wall of house upto 30 feel to 35 feel had collapsed and the rest of the wall was in danger. It was also mentioned that even earlier in the year 1984 Ranjit Singh had tried to forcibly occupy this public thoroughfare but the Panchayat had got the matter compromised and the encroachment was removed.
3. A conditional order under Section 133 of the Code was passed. Ranjit Singh appeared and controverted the allegations made in the application. According to him. there is no public through fare and that his possession over the land in question has been upheld by the Civil Court vide its judgment dated 12-8-1994 and as such the said application was not sustainable in the eyes of law.
4. The parties produced documents in support of their respective plea. The Sub-Divisional Magistrate also inspected the site in dispute and thereafter confirmed the conditional order by the impugned order (Annexure P.1).
5. Ranjit Singh, feeling aggrieved, challenged the said order by way of revision before the Additional Sessions Judge, Hissar. It was contended by him that the Sub-Divisional Magistrate had not given him any opportunity to the parties to produce evidence required by Sections 137 and 138 of the Code and that he had no power to inspect the spot himself and to decide the matter thereon. After perusing the record of the Sub-Divisional Magistrate, the Additional Sessions Judge came to the conclusion that the parties were given opportunity to produce evidence as the matter remained pending for about 3 months before the Sub-Divisional Magistrate and that inspection report has not been made the basis of the order passed under Section 138 of the Code, and has been used to appreciate the rival contentions. With these findings, the orderdated 30-11-1994. passed by the Sub-Divisional Magistatc was affirmed and the revision was dismissed. Feeling aggrieved, Ranjit Singh has challenged both these orders under Section 482 of the Code.
6. I have heard the learned counsel for the parties and have perused both the orders.
7. This petition is liable to be dismissed on a short ground that after the dismissal of his revision petition by the Additional Sessions Judge, inherent powers under Section 482 of the Code cannot be utilised for exercise of powers which arc expressly barred by the Court. It is not disputed that once a revision petition has been dismissed by the Court of Session, no second revision can be filed in the High Court. This view finds affirmation by an authoritative pronouncement of the apex Court in Deepti alias Arati Rai v. Akhil Rai (1995) 7 JT (SO 175. A similar view has been expressed earlier by the apex Court in Ganesh Narayan Hegde v. S. Bangarappa. (1995) 4 JT SC 124 : (1995 Cri LJ 2935). Since the order passed by the Sub-Divisional Magistrate is being challenged in the present petition on those very pleas which were taken before the Additional Sessions Judge and were rejected by him. this petition is in the nature of a second revision in the garb of a petition invoking the inherent jurisdiction. In view of the law laid down by the apex Court in the aforesaid decisions, the present petition is liable to be dismissed for this simple reason.
8. Even on merits. 1 do not find any justification to interfere with the two orders in question. It is correct that after a conditional order is passed under Section 133 of the Code by a Sub-Divisional Magistrate, the person concerned, if he objects to the same, may appear before the said Sub-Divisional Magistrate and show cause as to why the order should not be made absolute. The procedure thereafter is laid down in Sections 137 and 138 of the Code. In other words, the party shall be called upon to produce evidence in support of their respective claim. Section 139 of the Code empowers the said Magistrarte, for the purposes of the said enquiry, to direct a local investigation to be made by such person as he thinks fit and may also issue written instructions as may be deemed necessary for his guidance. It is also correct that the Sub Divisional Magistrarte is bound to follow the procedure laid down in Sections 137 and 138 of the Code and cannot decide the question under Section 133 read with Section 138 of the Code merely by inspecting the spot in dispute.
9. The learned counsel for the petitioner has placed reliance, inter alia, upon a judgment of this Court rendered in Amar Singh v. Nasib Singh, 1995 (1) Recent C.R.376. In that case, no evidence of the parties was recorded by the Magistrate in the proceedings initiated under Section 133 of the Code. The parties agreed to the inspection of the spot by the Tehsildar who failed to make a report by the due date. In these circumstances the Sub-Divisional Magistrate himself inspected the spot, got the measurement done from the Kanungo. and on that basis he found that there was an encroachment. Interim order was made final under Section 138 of the Code. While setting aside the said order and remanding the case for fresh decision a Single Bench of this Court observed as under:-
The contention of the learned counsel for the petitioner has force. The petitioners had clearly denied any encroachment upon the passage and claimed that the passage was running as usual. The petitioners had a right to show that the part on which encroachment was said to have been made, in fact. was not a part of the passage and the passage was located at a different point. They were, however, not given any opportunity and no evidence was recorded. In Keisam Kumar Singh v. State of Manipur, AIR 1985 SC 1664. their Lordships of the Supreme Court held that normally u Court is not entitled to make a local inspection and even if such an inspection is made, it can never lake the place of evidence or proof but is really meant for appreciating the position at the spot. The Sub-Divisional Magistrate, no doubt, was justified in making the spot inspection, which could be for the purpose of appreciating the evidence that the parties may have brought on record. Section 138 of the Code of Criminal Procedure provides as to how the evidence is to be recorded where a conditional order under Section 133 of the Code of Criminal Procedure is made and the party who challenges that order, has appeared and shown cause against that order. There was. thus, no proper trial of the application brought by the respondents.
Since this judgment of this Court is based upon a judgment of the apex Court. I need not refer to any other precedent on the subject.
10. Turning to the case in hand, it may be stated thai the Sub-Divisional Magistrate is bound to give opportunity to the parties to produce evidence. The term "evidence" means oral evidence or documentary evidence. In the present case, the parties chose to produce documentary evidence and did not apply for producing oral evidence at all. It is not the case of the petitioner that he had requested that his oral evidence be also recorded. Both the parties rested tlieir respective case on documentary evidence. In these circumstances, it cannot be alleged that the Sub-Divisional Magistrate has not proceeded to enquire into the matter in accordance with law.
11. As regards the contention regarding the inspection of the spot by the Sub Divisional Magistrate, the impugned order (Annexure P. 1) itself goes to show that the spot was inspected by him to appreciate the respective contention regarding the existence of ventilators and windows in the southern wall of the house of the petitioner, the drain passing through the alleged lane and the level of the lane going towards the johar, and the final order Anncxurc P. 1 is not based on the basis of that inspection. The final order passed by the Sub-Divisional Magistrate is based on an appreciation of documentary evidence produced by the parties.
12. It is trite that jurisdiction under Section 482 of the Code which saves the inherent powers of this Court, to make such powers as may be necessary to prevent abuse of process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercing that jurisdiction the High Court is not to embark upon an enquiry into the correctness or otherwise of the factual position affirmed by the two Courts below.
13. As a result of the above discussion. I do not find any merit in this petition and the same is hereby dismissed.