Patna High Court
Manik Chand vs Bhubneshwar Prasad on 13 January, 1960
Equivalent citations: AIR1961PAT278, 1961CRILJ850, AIR 1961 PATNA 278, 1961 BLJR 217
ORDER K. Sahai, J.
1. This application is directed against the final order passed in a proceeding under Section 147 of the Code of Criminal Procedure relating to a dispute over the first party's right of user on the second-party's land.
2. Appearing On behalf of the first party petitioner, Mr. R.S. Sinha has urged two points. The first point is that the learned Magistrate has riot followed a correct procedure, and the second point is that he has illegally, used the result of his local inspection as the sole basis of his judgment.
3. I will take up the points in the order in which I have mentioned them. The order of the Magistrate dated the 9th August, 1958 is as follows:.
"Parties present. Affidavits and documents have got to the filed. Let the parties file affidavits etc. by 30-8-1958".
In pursuance of the order, the parties filed affidavits-
and no evidence was adduced on behalf of either side. Mr. Sinha has contended that the procedure of Section 145, as amended by Act XXVI of 1955, does not apply in a proceeding under Section 147 and that, in a proceeding under the latter section, the parties have to be allowed to adduce evidence which is to be taken by the court. Appearing on behalf of the second party, Mr. T.K. Prasad has first argued that evidence may be given even in a proceeding under Section 147 in the form of affidavits, and has secondly contended that, in any case, the learned Magistrate has committed no illegality because he did not accept any oral evidence simply because the parties did not adduce any such evidence.
4. It is to be remembered that under the Criminal Procedure Code, as it stood before the. amending Act, (Act XXVI of 1955), the procedure for taking evidence in a proceeding under Section 147 was exactly the same as that in a proceeding under Section 145. Under the amending Act, the words "in the manner provided in Section 145, and the provisions of that section shall, as far as may be, be applicable in the case of such inquiry" have been omitted from Sub-section (1) of Section 147 and, in their place, the words "in the manner hereinafter provided" have been substituted. Subsection (1-A) has been added and that provides:
"(1-A) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists and the provision of Section 145 shall, as far as may be, be applicable in the case of such inquiry".
Thus, the procedure, now to be followed in a proceeding under Section 147 is the same as that in a proceeding under Section 145 before the amending Act of 1955 came into effect. The procedure in a proceeding under Section 145 has, however, been altered. Sub-section (1) of that section provides that the parties should be called upon to adduce the evidence of persons by putting in their affidavits. Sub-section (4) of the section lays down that documents and affidavits are to be considered by the Magistrate and he has to decide the question of possession "as far as may be practicable within a period of two months from the date of the appearance of the parties before him".
5. In support of his argument that evidence in a proceeding under Section 147 also may be adduced in the form of affidavits, Mr. T.K. Prasad has relied upon the words "and the provisions of Section 145 shall, as far as may be, be applicable in the case of such inquiry" in Sub-section (1-A) of Section 147. In my judgment, there is no substance in this argument. These words merely indicate that, in respect of other matters of procedure, the procedure to be followed in a proceeding under Section 147 will, as far as possible, be the same as that in a proceeding under Section 145.
As it has, been clearly laid down in Sub-section (1-A) of Section 147 that the Magistrate shall receive all such evidence as may be produced by the parties respectively, and as nothing has been said in that sub-section about adducing evidence of persons by putting in their, affidavits, I do not think that the legislature, intended by the words relied upon by Mr. T.K. Prasad to lay down that affidavits of witnesses could be a substitute for their examination in court even in a proceeding under Section 147. I, therefore, hold that the Magistrate was wrong in calling upon the parties to file only affidavits. He should have examined all such witnesses and taken all such evidence as may have been produced by the parties.
6. I do not think that Mr. T.K. Prasad is quite right even in saying that the Magistrate has committed no illegality because he has not refused to accept any evidence, tendered before him; It is true that the parties did not adduce any oral evidence before him, but they were clearly misled by the learned Magistrate's order which I have quoted. In this view of the matter, the learned Magistrate appears to have acted wrongly.
7. I come now to the second point. At the very start, I must observe that the learned Magistrate has acted in a very unsatisfactory manner and has written an unsatisfactory judgment. He held a local inspection, but as provided in Section 539-B, he should have done so "for the purpose of properly appreciating the evidence given" before him. He should also have, under Sub-section (2) of that section, drawn up a memorandum. What he has actually done is to draw up a rough plan which he has treated as his memorandum of local inspection. He has said in his judgment about one passage that it "appeared to be extremely dirty, insanitary and giving out obnoxious smell due to the constant flowing of the refuses and back washes from the house of the second party".
About another passage, he has said that he found it to foe "very clean and well-kept". He has not recorded any of these facts in his memorandum. The memorandum should contain all facts upon which the Magistrate proposes to rely in his judgment so that the parties may have notice that those facts have been noted and might be used;
8. The learned Magistrate has also acted illegally in basing his judgment entirely upon his local inspection. In fact, he has said:
"The local inspection itself gave me the satisfaction that this passage along with the National Hall is the main passage of the 1st party and hence his claim that it is a service lane is unfounded".
He was not legally entitled to make such use of the result of his local inspection. Section 539-B makes it clear that he could only use it for the purpose of appreciating the evidence.
9. For the reasons given above, the learned Magistrate's order is vitiated and cannot be allowed to stand. I, therefore, allow the application and set aside the impugned order. If there is any apprehension of a breach of the peace in future, a fresh proceeding under Section 147 will be drawn up and will be disposed of in accordance with law.