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1978 DIGILAW 20 (BOM)

FLORI RODRIQUES v. MAXIE JUREME DANIAL CABRAL

1978-02-16

N.B.NAIK

body1978
JUDGMENT This revision application raises an interesting question of law about the recent changes made in the provisions of section 145 of the Code of Criminal Procedure, 1973. 2. The question arises under the following circumstances: It appears that Maxie-respondent No.1 and Danial-respondent No.3 are brothers and Mrs. Flori-petitioner No.1 is their sister. House No. 94, Azad Road, Vile Parle, Bombay-57 is the subject matter of dispute. Jerome Daniel Cabral was the father of Maxie, Daniel and Flori. It is the case of Maxie that the entire building was constructed by him from his own funds sometime in 1969 and that he was residing there with his parents and his mother died in 1970 and father in 1975. 3. On 8th May 1975, Maxie made an application to the Executive Magistrate, Gr. Bombay, under section 145 of the Criminal Procedure Code, 1973 against his sister Flori, brother Daniel and Flori's two sons Conard and Farce). He complained that on 19th April 1975, Flori's two sons had broken open the lock and taken forcible possession of the First floor. A preliminary order was passed by the Magistrate on 20th May 1975. The disputed portion came to be attached under section 146 (1) of the Criminal Procedure Code, 1973 on 20th June 1975. In support of his contention that he is the exclusive owner of the building and in exclusive possession of the disputed premises, Maxie filed besides his own affidavit, the affidavits of one Pereire, Pradhan, Solkar, Cecilia Lawrence and Glen Lewis, the daughter and son respectively of Maxie's maternal uncle Luis Lawrence. That application was resisted by Flori by contending, inter alia, that she had also contributed about Rs. 10,000 for the construction of the building and that she was in joint possession of the flat. In support of her contention besides her own affidavit she filed the affidavit of her maternal uncle Luis Lawrence, Michael Cabral, one Krishna Patil and Victor Desilive. She also filed her bank pass book and letters received at the disputed address. It may be mentioned that Maxie-the applicant also filed a declaration of his deceased father Jerome Cabral made on oath on 24th October 1972, tong before the matter in dispute arose, stating inter alia that the building was constructed exclusively from the earnings of Maxie. 4. She also filed her bank pass book and letters received at the disputed address. It may be mentioned that Maxie-the applicant also filed a declaration of his deceased father Jerome Cabral made on oath on 24th October 1972, tong before the matter in dispute arose, stating inter alia that the building was constructed exclusively from the earnings of Maxie. 4. The learned Magistrate after perusal of these documents preferred to accept the version of Maxie to that of his sister Flori. Among other reasons for coming to that decision, be observed in paragraph 5 of his judgment that no doubt Luis Lawrence, the maternal uncle of the disputing parties, an elderly gentlemen had come to support Flori but be was not prepared to place any reliance on the affidavit of Luis Lawrence inasmuch as be was contradicted by his son and daughter viz. Cecilia Luis Lawrence and Glen Lewis who had filed affidavits in support of Maxie. These two deponents, it appears from paragraph 5 of the judgment of the learned Magistrate, had contended that Luis Lawrence was suffering from arteritis and rheumatism and that he was totally disabled and that his brain was not functioning properly and that be was unable to understand the issues. The learned Magistrate observed that it is therefore improbable that man viz. Luis Lawrence would come to support Flori and he, therefore; believed the contention of Maxie that the respondent No 4 Daniel, had made him sign the affidavit taking advantage of his infirmity. That .is how be discarded the evidence of Luis Lawrence. 5. Having thus discarded the case of Flori, the learned Magistrate passed an order in favour of Maxie. That is why Flori has preferred this revision application. 6. Mr. Rajani, learned advocate for the revision petitioners contended that the learned Magistrate was not justified in rejecting outright the sworn testimony of Luis Lawrence favouring Flori without even seeing him or his mental condition and without testing his evidence or the evidence of his daughter and son by cross-examination. He also submitted that having regard to the previsions of sub-section (4) of section 145, the procedure adopted by the Magistrate in disposing of the proceedings on affidavits is illegal and must be set aside. 7. As against that Mr. He also submitted that having regard to the previsions of sub-section (4) of section 145, the procedure adopted by the Magistrate in disposing of the proceedings on affidavits is illegal and must be set aside. 7. As against that Mr. Valand, learned Advocate for the respondent No.1 submitted that Flori never asked for an opportunity to cross-examine any of the witnesses and since that was not done and muchless was such a request rejected by the Magistrate, there is no substance in the grievance of Mr. Rajani. He also submitted that notwithstanding the phraseology of subsection (4) of section 145, if the parties do not choose to lead any oral evidence there is nothing to prevent the Magistrate to decide the matter on affidavits, and, therefore, the procedure which was followed by the Magistrate cannot be said to be illegal or improper. 8. The short question which I have therefore to consider is as to whether the procedure which was followed by the Magistrate in disposing of the matter on affidavits is proper. That leads me to a study of the provisions of section 145 of the Code of Criminal Procedure, 1898 in juxtaposition with the provisions of section 145 of the Code of Criminal Procedure, 1973, which shall be hereinafter referred to as the "old Code" and the "new Code" respectively. S. 145(1) of the old code. "Whenever a Chief Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government, in this behalf is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute (and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims)." S. 145 (1) of the New Code. "Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." 9. It may be mentioned that the portion in brackets under the old Code was added by Act 26 of 1955 and it is this provision which requires the parties to put in such documents or to adduce by putting in affidavits, the evidence of such persons as they rely upon in support of such claims. Prior to this amendment there was no such provision. "Section 145 (4) of the old Code. The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the enquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject; Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein; provided further that, if it appears to the Magistrate that any party has, within two months next before the date of such order, been forcibly and wrongfully dispossessed, be may treat the party so dispossessed, as if he had been in possession at such date: Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. Section 145 (3) of the New Code. Section 145 (3) of the New Code. The Magistrate shal1 then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1)." 10. It may be mentioned that the reference to the affidavits in subsection (4) of section 145 of the old Code, was also made by the self-same Amendment Act 26 of 1955. A perusal of the two sub-sections in juxtaposition would show that under sub-section (4) of the new Code, the expression "documents and affidavits, if any, so put in" occurring in sub-section (4) of the old Code, have been deleted. On the other hand, in that sub-section we have the expression "receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary." It would, therefore, appear reading both the provisions of sub-sections 1 and 4 of section 145 of the old Code in juxtaposition with sub· sections 1 and 4 of section 145 of the new Code, that the Legislature has deliberately done away with the amendment concerning the affidavits which was made by section 18 (a) and (b) of the Criminal Procedure Amendment Act 26 of 1955, thereby dispending with the affidavits altogether and restoring the provisions to the position which existed prior to the amendment of the Code by Act 26 of 1955. Not only that but the Legislature has specifically provided in sub-section (4) of section 145 of the new Code that the Court shall receive all such evidence as may be produced by the parties and take such further evidence if any as it thinks necessary. When deliberate changes have been made by the Legislature, and the Legislature having deleted the amendments which were made by the Amending Act 26 of 1955 while enacting the Code of Criminal Procedure, 1973, so as to do away with affidavits and there is a reference in sub-section (4), only to the evidence, it would appear that it is no longer permissible for a Magistrate to decide proceedings under section 145, on the basis of affidavits. Since that appears to be the clear intention of the Legislature, the procedure adopted by the Magistrate in disposing of the matter is not warranted by the amended Code of Criminal Procedure, 1973. 11. In this connection I may refer to the observations of the Law Commission. The Law Commission hail observed as under: "The revised procedure (referring to the amendment made in 1955 to sub-sections (1) and (4) of section 145 of the old Code by the Amendment Act (26 of 1955)) does not appear to have worked satisfactorily in practice. It is said that stereotyped affidavits prepared by lawyers on the same lines as the written statement are put in by both sides and these do not help the Magistrate very much in reaching a sound decision. Examination of witnesses under the first proviso cannot in most cases be avoided and consequently there is no saving of the Court's time. The main object of the amendment, which is to get enquiry completed rapidly, has not been achieved. On principle also it is better that the Magistrate is required to decide the important fact of possession on the basis of oral evidence given before him and tested by cross-examination in the presence of the parties. We, therefore, recommend that the procedure as it existed before 1955 should be restored." 12. On principle also it is better that the Magistrate is required to decide the important fact of possession on the basis of oral evidence given before him and tested by cross-examination in the presence of the parties. We, therefore, recommend that the procedure as it existed before 1955 should be restored." 12. It is evident that it is on the basis of this recommendation of the Law Commission that the changes which were made by the Amendment Act of 1955 in sub-sections (1) and (4) of section 145 of the old Code have been deleted and there are also consequent amendments in subsection (4), and it is therefore clear that it is no longer open to the Magistrate to dispose of proceedings under section 145 of the Criminal Procedure Code, on the basis of affidavits. This very case is an illustration as to how it is essential for a Magistrate to see the witnesses for himself inasmuch as in this case the Magistrate has observed without even seeing Flori's witness, Luis Lawrence that he is a disabled man and incapable of giving evidence. 13. In the result, although no grievance might have been made in the tower Court by Flori's advocate as is submitted by Mr. Valand, since the Magistrate bas not followed the prescribed procedure and it was his duty to follow the prescribed procedure, the whole enquiry bas been vitiated and therefore, the order must be quashed and the proceedings must be sent back for disposal according to law in the light of this judgment. Rule absolute. Stay vacated. Rule made absolute.