Madras High Court
Lucas And Others vs Father Bilavendran And Others on 23 February, 1996
Equivalent citations: 1997CRILJ1947, 1996(1)CTC525
ORDER
1. This revision has been filed by 'A' party/petitioners against the order passed in M.C. No. 58/92/(A2) dated 31-5-1993 by the Sub-Divisional Executive Magistrate and Revenue Divisional Officer, Salem.
2. The 19th respondent, Inspector of Police, Thammampatti, Attur Taluk, initiated the proceedings under Section 145, Cr.P.C., before the Sub-Divisional Executive Magistrate and Revenue Divisional Officer, Salem, against the petitioners/ A party as also the respondents 1 to 18/B party. On entertaining the petition filed by the police, learned Executive Magistrate passed a preliminary order under Section 145(1), Cr.P.C., on 23-6-1992, following which both 'A' and 'B' parties appeared before the learned Sub-Divisional Executive Magistrate. The matter was periodically adjourned for filing the written statement by respective parties on 21-7-1992, 2-8-1992, 15-9-1992, 29-9-1992 and 19-10-1992. In the mean time the petitioners/ 'A' party filed an application to send for some documents to enable them to file a written statement. No order has been passed on such application. But the learned Sub-Divisional Executive Magistrate passed the final order on 31-5-1993 in M.C. No. 58/92(A2), without even conducting any enquiry. But the final order shows, as if the Executive Magistrate has gone through the records and the written statement filed by both the parties and thereafter he came to the conclusion that 'B' party/respondent 1 to 18 were in possession of the land in dispute. Against this order, the present revision has been filed by 'A' party/ petitioners.
3. Mr. Venkataraman, appearing for Mr. V. Nicholas, counsel for the petitioners/ 'A' party raises three points in this revision. They are :-
(i) Even without receiving written statement from 'A' party, learned Sub-Divisional. Executive Magistrate has passed the final order by making a false observation that 'A' party has filed the written statement, and has been perused by him.
(ii) Under Section 145(4), Cr.P.C., opportunity must be given to both parties to adduce evidence, before coming to the conclusion.
(iii) The word 'evidence' as incorporated in Section 145(4), Cr.P.C., denotes that the witnesses on both sides must be examined and cross-examined by the respective parties, which has not been done in this case.
On these grounds, learned counsel for the petitioners/'A' party vehemently contends that the order passed by the Sub-Divisional Executive Magistrate is illegal and liable to be set aside and as such he requested the Court to remand the matter to him for a fresh disposal in accordance with law. Counsel for the respondents 1 to 18/B' party also does not dispute this. He also admits on verification of the records in this Court, that no such written statement was filed and as such the order was passed without giving opportunity to the parties.
4. I have heard Mr. Raghupathi, learned Addl. Public Prosecutor on this point. He also submits that he is not able to support the order of Sub-Divisional Executive Magistrate, in view of the patent illegality committed as referred to above.
5. In the case of K. Palaniappan v. The Executive First Class Magistrate and R.D.O. Sankari, 1989 Mad LW (Cri) 321, Justice Arunachalam, has observed as follows :-
"Sub-section (4) of Section 145, Cr.P.C. enables both parties to adduce oral and documentary evidence and the Magistrate is bound not only to receive all such evidence as may be produced but also is empowered to take such further evidence, if any, as thinks necessary. The Magistrate, under the new Code (1974) cannot dispose of a proceeding on the basis of affidavits and therefore, the evidence of witnesses will be essential for deciding the question of possession. The evidence contemplated includes both oral and documentary. In order to enable parties to adduce evidence reasonable opportunity has to be given to produce documents and witnesses and the Magistrate will also have a duty to summon such witnesses as may be required by either party. This procedure prescribed under sub-section (4) of Section 145, Cr.P.C. must be followed for it is mandatory and the oral evidence aduced will have to be recorded and documents properly proved according to the rules of evidence. After the production of the oral and documentary evidence, the Magistrate will have to decide the question of possession on the evidence placed before him, which necessarily implies discussion of the evidence placed before him..........
After the coming into force of the Cri. P.C. 1974, possession cannot be decided on the basis of affidavits alone".
6. It is apparent on the face of the records available in this case, that no such opportunity has been given to the parties. The Sub-Divisional Executive Magistrate has miserably failed to follow the mandatory provisions as contemplated under Section 145, Cr.P.C. by hurriedly passing the final order challenged in this revision. The worst part of the order is that the Executive Magistrate was so hasty in making a false observation, as if he has received the written statement, while factually it was not, and then come to the conclusion on perusal of the same, in favour of 'B' party/respondents 1 to 18. I am at a loss to understand as to how the Executive Magistrate would record about the receipt of written statement, especially when both 'A' and 'B' parties submitted before this Court that no such written statement was filed by 'A' party before the Sub-Divisional Executive Magistrate. Even assuming that such written statement has been filed, the decision referred to above rendered by this Court would clearly show that the question of possession cannot be decided on the basis of affidavits or written statements alone, but further opportunity of examining and cross-examining the witnesses must be given to the parties. Admittedly, this is not done in this case.
7. Yet another decision of this Court in the case of N. A. Ansary v. Jackiriya, 1989 TLNJ (Cri) 293 has been brought to my notice, in which Justice Janarthanam, has held as below :-
"The impugned order is vitiated by the non-compliance with the mandatory provision adumbrated under Clause (4) of Section 145, Cr.P.C. In support of both the contentions, attention has been drawn to the decisions rendered by the apex of the judicial administration and the various High Courts. .........
A perusal of the above provision shows that the Magistrate has to peruse statements put in by the parties, hear and receive such evidence as may be produced by them and take further evidence if he thinks necessary, before taking a decision as to which of the parties was in possession ........
To put it otherwise, as per the Code as amended in 1955, no oral evidence was allowed to be let in and affidavits alone were filed in proof of the claims of the respective parties ..........
Now the present Code makes it obligatory for the Executive Magistrate to receive all such evidence as may be produced by the parties and also take further evidence, if any, as he thinks necessary ..........
The mandatory duty cast upon the Magistrate is to receive all such evidence as may be produced by the parties ........
It is to be mentioned here that a perusal of the records available before Court does not point out that an opportunity in fact had been given to the parties to adduce evidence as contemplated under Section 145(4), Cr.P.C. by the Magistrate".
8. The above decisions would make it clear that enquiry under Section 145(4), Cr.P.C. is a mandatory one and the failure to do the same would vitiate the order. So, I feel that the interest of Justice would be met by setting aside the order passed by the Sub-Divisional Executive Magistrate and R.D.O. Salem in M.C. No. 58/92(A2) dated 31-5-1993 and remanding the matter back to him for fresh consideration of the issue by providing opportunity as contemplated under Section 145(4), Cr.P.C.
9. In that view of the matter, the order passed by the Sub-Divisional Executive Magistrate and R.D.O. Salem in M.C. No. 58/92(A2) dated 31-5-1993 is set aside and the matter is remanded back to him for fresh consideration. The Sub-Divisional Executive Magistrate is directed to deal with the case, after taking into consideration the observations made above in this order and dispose of the same in accordance with the provisions of Section 145, Cr.P.C. The revision is allowed accordingly.
10. Petition allowed.