Patna High Court
Abdul Hamid vs Hasan Raja And Ors. on 23 March, 1923
Equivalent citations: 72IND. CAS.951, AIR 1923 PATNA 366
JUDGMENT Kulwant Sahay, J.
1. The petitioner was the second party in a proceeding under Section 147 of the Criminal Procedure Code. The dispute related to the right of taking water from Bhonria Ahar in village Jamuara belonging to the first party to the Kunda Ahar belonging to the second party. The case of the second party was that there is a river known as Husainabad river towards the south from which water used to come to Eksari Ahar through a channel, and from that Ahar the water used to be taken to the Bhonria Ahar in Jamuara, and from this Ahar the water passed through a channel to Khurumpur Ahar from where it was taken to the Kunda Ahar of the second party. The case of the first party was that the second party has no right to take the water from the Bhonria Ahar to the Kunda Ahar. The proceeding was initiated upon a report of the Sub-Inspector of Sheikhpura as regards the likelihood of a breach of the peace between the first party and the second party with regard to their right to irrigate the lands from the Bhonria Ahar. On the 7th November 1922 Mr. Lee, the District Magistrate, on receipt of the Police report, made an order to draw Up proceedings under Section 147, Criminal Procedure Code, and to serve notices on the parties by a special peon. The order on that date is as follows:--"The parties to appear with their witnesses and show cause at Sheikhpura Dak Bungalow before Second Lieutenant Ram Prasad Narain Sahi, on the 20th November. The case is transferred to his file for disposal. Evidence should be heard and the case decided on 20th November and 21st November at Shekhpura." On the 20th November 1922, written statement and the Fard-ab-pashi were filed by the parties before the Second Lieutenant Ram Prasad Narain Sahi, and on the same date, after perusing the written statement and examining the Sub-Inspector at Sheikhpura the learned Deputy Magistrate went to the locality, made a local inspection, and after noting the facts of his having made the local inspection, he recorded in the order-sheet of the 20th November the following order : "I do not think it is necessary to examine any witnesses because they will not be able to say anything beyond what I have already seen. I have also perused the Fard-ab-pashi of Eksari" and then upon the application of the Mukhtear for the second party, who wanted to place certain law points and other Record of Rights before the learned Deputy Magistrate, he made the following order : "Put up in Monghyr on 23rd November 1922 for hearing parties about law points." On the 23rd November 1922 the following order is recorded in the order-sheet: "A law point is raised that evidence must be recorded. I shall do so on 27th November 1922. I shall also consider this point in the meantime. A petition is put up that I did not visit the locality at a place from which the channel comes from the river. I had been as far as it was pointed out to me. I could not go indefinitely. So this is rejected. Put up on 27th November 1922." A petition was thereupon filed before the learned District Magistrate for transfer of the ease on the ground that the Deputy Magistrate did not make the local enquiry as requested and that he had already made up his mind that the petitioner was in the wrong. The learned District Magistrate, however, rejected the application for transfer and on the case being taken up by the Deputy Magistrate on the 13th of December 1922, he examined some witnesses for the parties and on the 19th December 1922, he made the final order in favour of the first party.
2. The first point taken by the learned Vakil for the petitioner is that the learned District Magistrate's order of the 7th of November 1922 directing the parties to appear and show cause before the Deputy Magistrate at Sheikpura was without jurisdiction. He relies upon the case of Misri Chaudhury v. Narsingh Prasad Tewari 62 Ind. Cas. 179 : 2 P.L.J. 186 : 22 Cr.L.J. 483. In that case it was held that Section 147, as well as Section 145, of the Code require that the Magistrate drawing up the proceeding shall require the parties concerned to attend his Court; and, therefore, when the Magistrate who draws up the proceeding orders the parties to appear before another Magistrate, he acts against the clear direction in the Code and acts without jurisdiction. Now, it has been held in a number of cases that proceedings under Sections 145 and 147 are criminal cases and a Magistrate has power to transfer such cases under Sections 192 and 528 of the Code of Criminal Procedure. If that is so, I see no ground for holding that the order for transfer made in the present case was without jurisdiction. Indeed, it war, conceded in the case just cited that the Magistrate had the power to transfer the case, but it was held in that case that the Sub-Divisional Magistrate who had drawn up the proceedings, did not transfer the case expressly or by implication to another Magistrate. In the case now before us, there is a clear order in the order-sheet of the 7th November 1922 transferring the case to the file of Second lieutenant Ram Prasad Narain Sahi. I am, therefore, of opinion that the Deputy Magistrate, to whom the case had been transferred, had jurisdiction to deal with the case, and the Magistrate, who drew up the proceedings, had power to transfer the case.
3. The second point urged by the learned Vakil for the petitioner is that the learned Deputy Magistrate acted without jurisdiction in making the local inspection prior to taking, evidence in the case. In my opinion there is no substance in this objection. Section 148 clearly provides for local inspection whenever such enquiry is deemed necessary for the purposes of Chapter XII of the Code. Such enquiry can be made either by any Magistrate subordinate to the Magistrate before whom the case is pending or by that Magistrate himself, as was held in the case of Dowlat Koer v. Siva Pershad Pandit 10 Ind. Cas. 615 : 15 C.L.J. 267 : 12 Cr.L.J. 319. The rule that in criminal cases the Court is only justified in holding a local inspection in order to explain the facts appearing in the evidence does not apply to Section 147 of the Criminal Procedure Code. Special provision is made in the Cede for local inspection in these cases; and in cases where rights of irrigation and rights of taking water through particular channels from particular reservoirs are concerned, a local inspection is imminently necessary. It was also laid down in the same case that although, as a rule, it is better to have such an investigation made by some other person, there is nothing in law to prevent the presiding Magistrate from making the investigation himself provided he records what he saw and does not act upon hearsay evidence. This objection, therefore, must be disallowed.
4. The third objection taken by the learned Vakil for the petitioner is that in deciding the case the learned Magistrate has relied upon the result of his own local inspection and not upon the evidence on the record. This objections appears to be of substance and ought to be allowed. On a reference to the judgment of the learned Deputy Magistrate it is quite evident that his finding is based upon the results of his own local inspection. It is a salutary principle of law that the finding of a Court must be based upon evidence duly recorded by it and not upon the impression formed by the Judge on a local inspection of the locality. He can, in order to elucidate the evidence, make a local inspection and the object of a local enquiry would be only with a view to understand the evidence actually adduced in the case. Moreover, it is absolutely necessary that, if a Magistrate makes a local enquiry he must make a note of what he saw and must place it on the record so that the parties may be in a position to know what impression the Magistrate had got by the local enquiry. It is possible that the Magistrate may have formed a wrong impression, and, if the results of his inspection are recorded, the parties would be in a position to know if there has been an error and will be in a position to remove the wrong impression formed by the Magistrate. In the present case the learned Deputy Magistrate made no note of his local inspection and there is no record of it either in the order-sheet or anywhere else in the record. This objection ought, in my opinion, to prevail and the order of the learned Deputy Magistrate is set aside and the case remanded to him for disposal according to law.