Ram Nath v. Suraj Prasad — 1958 DIGILAW 37 (ALL)

JUDGMENT N.U. Beg, J. - This is a reference by the learned Sessions Judge, Orai, recommending that the order of the S. D. M. Kalpi, dated 15-4-1955, releasing the crop standing on plot No. 469 in favour of one Suraj Prasad be set aside and the case be remanded to him with a direction to readmit the same for trial and dispose it of on merits according to law giving the parties full opportunity to adduce oral and further documentary evidence in support of their respective contentions about the possession of the disputed crop. 2. At the very outset it may be noted that the bone of contention in the present case is the crop that stood in plot No. 469. This dispute led the applicant Ram Nath to give an application u/s 145, CrPC. In this application Ram Nath alleged that he was a tenant of plot No. 469, and that a case was going on in the revenue court between him and the opposite party, namely, Suraj Prasad in respect of this very plot. He further alleged that on this plot he had sown and grown the crops which were the subject matter of dispute, and of which the opposite party had threatend to take forcible possession. There was, therefore, a likelihood of breach of peace in respect of the crop of this plot, it was accordingly prayed that the crop in dispute be attached through police, and, after due enquiry, released in his favour. 3. The learned S. D. M. called for a report from the S. O. concerned. He was thereafter satisfied that a bona fide dispute about the crop did exist and was likley to result in a breach of peace. He, accordingly, ordered the attachment of the said crop. The parties were directed to file their respective written statements before the court. Both the applicant as well as the opposite party accordingly filed their written statements. Both claimed in their written statements that they were in possession of the plot. Each of them alleged in his written statement that he was in possession of the plot in question and that the crop in dispute had been sown and grown by him. 4. The application u/s 145, Code of Criminal Procedure was made by Ram Nath in March 1955. Each of them alleged in his written statement that he was in possession of the plot in question and that the crop in dispute had been sown and grown by him. 4. The application u/s 145, Code of Criminal Procedure was made by Ram Nath in March 1955. It appears that on that date a case was also going on between him and the opposite party in the revenue court. This was a case u/s 59 of the UP Tenancy Act in which the opposite party claimed a declaratory decree in his favour. One of the issues in this case was whether the Plaintiff was in possession of plot No. 469. This issue was decided in favour of Suraj Prasad the opposite party. The judgment in the said case was delivered on 24-10-1954. A copy of this judgment was produced before the learned Magistrate. As soon as he was confronted with this document, he was of opinion that it was unnecessary for him to allow the parties to adduce any oral evidence in respect of the matter in dispute. Thereafter, he did not allow the applicant to produce any oral evidence in his favour and wrote out an order in which he observed as follows: I hold that it would be proper to deem Suraj Prasad in possession on the date of dispute in terms of the learned Revenue Court's decree. 5. From the above observation it is evident that the learned Magistrate was of opinion that after the above judgment, it was not necessary for him to enqnire further into the matter as he considered himself bound by the terms of the said judgment. He, therefore, wrote an order directing that the crop be released in favour of Suraj Prasad, the opposite party. 6. Dissatisfied with the said order Ram Nath applicant went up in revision before the learned Sessions Judge, Orai. After hearing the parties, the learned Judge has made the present reference to the High Court. 7. Having heard the Learned Counsel for the parties, I am of opinion that this reference should be allowed. 8. On behalf of the applicant Ram Nath, it has been argued before me that the learned Magistrate was not justified in shutting out the oral evidence which Ram Nath wanted to adduce. 7. Having heard the Learned Counsel for the parties, I am of opinion that this reference should be allowed. 8. On behalf of the applicant Ram Nath, it has been argued before me that the learned Magistrate was not justified in shutting out the oral evidence which Ram Nath wanted to adduce. On the other hand, on behalf of the opposite party, it has been argued that the revenue court had gone into the details of the matter, and the enquiry u/s 145 being a summary one, the S. D. M. was right in giving effect to it. I am of opinion that the decision of the revenue court is no doubt an important piece of evidence in the case. It is, however, merely a piece of evidence and is not conclusive of the matter in dispute in proceedings u/s 145, CrPC. The order of the learned Magistrate in the present case shows he was of opinion that he was bound by the decision of the revenue court, and that once such a decision was produced before him, it was incumbent upon him to give effect to it. He had accordingly, rejected the application of Ram Nath to summon oral evidence. The view taken by the learned Magistrate appears to me to be erroneous. 9. Reference in this connection might be made to a Bench decision Hosnaki v. State 1955 AWR (HC) 654. In this judgment there is an exhaustive discussion of the law on the subject. In this case it was held that The existence of a judgment of a Court deciding a question of title or even of possession does not justify a Magistrate's refusing to receive evidence. If evidence must be received in spite of the existence of a judgment of a Civil Court, it necessarily follows that the Magistrate is not concluded by the judgment but must consider it along with other evidence. 10. On behalf of the opposite party, Learned Counsel invited my attention to the two cases Kunj Behari Das v. Emptor 1936 AWR (HC) 439 and Kunj Behari Das and Others Vs. Emperor, AIR 1936 All 322 a reference was made to Sub-clause (9) of S. 145, Code of Criminal Procedure and it was observed that a Magistrate has discretion in proceedings u/s 145, Code of Criminal Procedure to reject an application for summoning oral evidence. It was argued that u/s ub-Cl. Emperor, AIR 1936 All 322 a reference was made to Sub-clause (9) of S. 145, Code of Criminal Procedure and it was observed that a Magistrate has discretion in proceedings u/s 145, Code of Criminal Procedure to reject an application for summoning oral evidence. It was argued that u/s ub-Cl. (9) of S 145, Code of Criminal Procedure a Magistrate may, if he thinks fit, issue a summons to any witness directing him to attend the court The facts of the present case appear to be distinguishable. In the present case the Magistrate did not exercise either his own independent judgment or discretion. On the other hand, he appeared to have surrendered his own judgment to the judgment of the revenue court, and felt that the judgment of the revenue officer had a restraining force which made it incumbent upon him to pass the particular order. He, therefore, rejected the application under a view of law which was erroneous. He cannot, therefore, be said to be acting u/s ub-Cl. (9)of S. 145, Code of Criminal Procedure in the present case. Moreover, in Kunj Behari Das and Others Vs. Emperor, AIR 1936 All 322 reference at the stage or revision was refused on the ground that no prejudice was caused to a party. On the other hand, in the present case, it cannot be said that the applicant was not prejudiced by the refusal of the Magistrate to summon his evidence. 11. So far as the case reported in AIR 1949 All 230 is concerned, this case was considered by the Bench in the case reported in Mst. Hosnaki and Others Vs. State, AIR 1956 All 81 and was dissented from. The reasons for taking a contrary view are mentioned in the Bench case and it is, therefore not necessary for me to repeat the same. 12. On behalf of the opposite party, it was also argued before me that the case reported in Mst. Hosnaki and Others Vs. State, AIR 1956 All 81 cannot be considered to be the law at the present, in view of the amendment in the said section brought about by the Code of Criminal Procedure (Amendment) Act, 1955 (Act No. 26 of 1955). Hosnaki and Others Vs. State, AIR 1956 All 81 cannot be considered to be the law at the present, in view of the amendment in the said section brought about by the Code of Criminal Procedure (Amendment) Act, 1955 (Act No. 26 of 1955). In this connection my attention was invited to S. 18 of the Code of Criminal Procedure (Amendment) Act, 1955, and it was argued that under the amended section the words which make it incumbent on the Magistrate to receive all evidence u/Cl. (4) of S. 145, Code of Criminal Procedure have been omitted. The said words having been omitted, it was argued that the Magistrate was not bound to allow oral evidence to be produced, I am, however, unable to accept this contention. In this connection it is enough to mention that the Code of Criminal Procedure (Amendment) Act, 1955, received the assent of the President on 10-8-1955 and was published in the Gazette of India on 12-8-1955. In the present case the order of the Magistrate was passed on 15-4-1955, and the application itself was filed in March 1955. The application was, therefore, pending at the time when the Act was passed and the order of the Magistrate had already been passed prior to the passing of the Amendment Act 1955. S. 116 of the Code of Criminal Procedure (Amendment) Act 1955 (Act No. 26 of 1955) provides that: Notwithstanding that all or any of the provisions of this Act have come into force in any State (a) the provisions of S, 14 or S. 30 or S. 145 or S. 146 of the principal Act as amended by this Act, shall not apply to or affect, any trial or other proceeding which, on the date of such commencement, is pending before any Magistrate and every such trial or other proceeding shall be continued and disposed of as if this Act had not been passed.... 13. In view of the above saving provision "contained in the Code of Criminal Procedure (Amendment) Act, 1955 (Act No. 26 of 1955), it appears to me to be quite clear that the present proceedings which were pending at the date when this Act was passed, will not be touched or affected by it. 13. In view of the above saving provision "contained in the Code of Criminal Procedure (Amendment) Act, 1955 (Act No. 26 of 1955), it appears to me to be quite clear that the present proceedings which were pending at the date when this Act was passed, will not be touched or affected by it. The correctness and legality of the order of the Magistrate will therefore be judged according to the provisions of the Act as it existed before it was amended. 14. The present matter can be viewed from another aspect also. In the present case, the dispute between the parties relates to crop. It is no doubt true that the parties have also alleged they are tenants of the plot on which the crop was grown. But the application related to the crop and the release order also was pasesd in respect of it. The main question, therefore in the present case related to the question as to who had sown and grown the crop, and was in possession of the same. It is no doubt true that the possession of the crop is interlinked with the possession of the plot. It is, however, possible to conceive a case where one person might be in possession of a plot of land, and another person might have forcibly entered on that plot, ploughed the land and grown his own crop. The order of the revenue court related to the plot of land. It had nothing whatsoever to do with the crop which is the subject matter of dispute in the present case. 15. Further, the order of the revenue court is dated 24-10-1954. The application in the present case was given in March 1955, and the preliminary order is dated 15-4-1955. In the present case, therefore the question at issue relates to an altogether different date. In the present proceedings u/s 145, Code of Criminal Procedure the relevant date is not 24-10-1954, but 15-4-1955. The possessions of the party therefore on 24-10-1954 may have a probative force, but it cannot be considered to be conclusive of the matter. 16. For the above reasons, I am of opinion that this reference must be allowed. I, accordingly, accept the reference and direct that the release order passed by the Magistrate shall be set aside. The possessions of the party therefore on 24-10-1954 may have a probative force, but it cannot be considered to be conclusive of the matter. 16. For the above reasons, I am of opinion that this reference must be allowed. I, accordingly, accept the reference and direct that the release order passed by the Magistrate shall be set aside. The case is, accordingly, remanded to the trial court with a direction to re-admit the same for trial and dispose it of according to law in the light of the observations made by me above, after allowing opportunity to the parties to adduce oral and further documentary evidence, if any, in support of their respective cases with regard to the possession of the disputed crop.