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1978 DIGILAW 238 (PAT)

RAM SARAN SAH v. PRAVAG VADAV

1978-11-24

SHIVANUGRAH NARAIN

body1978
JUDGEMENT Shivanugrah Narain, J. This application by the first party to a proceeding under Section 145 of the Code of Criminal Procedure, is directed against the final ORDER :passed by the Magistrate in the said proceeding by which he has declared the possession of the members' of the second party over 0.8725 acre, i. e. 87¼ decimals of land comprised in S. P. no. 411 appertaining to khata no. 97 of village Shyam in the district of Saharsa, which were the subject matter of the proceeding. 2. The first party claimed to be in possession from on after 27-2-1965 on the basis of a registered sale deed executed by Shivendra Narain Singh in favour of the father of the first party-petitioner in respect of 1.70 acres of S. P. no. 411 within which the lands in dispute are comprised. According to the first party, he had amalgamated these lands with his other lands which were comprised in S. P. nos. 408 and 410 and a single compact block of land measuring 5 bighas had come into existence and was in his possession. The members of the second party claimed to be in possession of the lands on the basis of a registered sale deed dated 22-11-1965 executed in favour of one of the members of the second party by Dhirendra Narain Singh, brother of Shivendra Narain Singh. 3. The proceeding was initiated on 31-3-1975. Both the parties filed written statements, adduced evidence and filed documents. On 31-12-1977, the second party filed a petition for local Inspection. That was ORDER :ed to be put up at the time of hearing. On 13-1-1978 arguments on behalf of both the parties in the main case as well as on the petition filed by the second party were heard and the prayer for local inspection was made on that date on behalf of both the parties. The learned Magistrate by his ORDER :of that date fixed 22-1-1978 for inspection and 30-1-1978 for ORDER :s. The local inspection was held by the learned Magistrate on 11-2-1978, but be did not record a memorandum of any relevant facts observed at the said Inspection. The learned Magistrate by his ORDER :of that date fixed 22-1-1978 for inspection and 30-1-1978 for ORDER :s. The local inspection was held by the learned Magistrate on 11-2-1978, but be did not record a memorandum of any relevant facts observed at the said Inspection. Thereafter, by his ORDER :dated 13-2-1978 the case was fixed for ORDER :s on 13-3-1978 and the ORDER :s were adjourned from one date to another and ultimately the ORDER :declaring the possession of the member of the second party was passed on 24-4-1978. It appears from the report of the learned Magistrate submitted to this Court that the original ORDER :passed by him was removed from the records. On allegation being made that all the pages except one of the original JUDGMENT : were removed by a lawyer of the first party, the lawyer concerned was asked to show cause and his show-cause was accepted and, thereafter, on 23-5-1978, the learned Magistrate passed the present impugned ORDER :on the basis of his recollection. It does not appear that the learned Magistrate again heard arguments before passing this impugned ORDER :. 4. In my opinion, the impugned ORDER :must be set aside because it is vitiated on account of the fact that in coming to his finding the learned Magistrate has relied upon the facts which he observed at the time of local inspection of the lands in dispute. No memorandum of the local Inspection made by the learned Magistrate is on record. It seems, therefore, clear that the learned Magistrate did not record any memorandum of facts observed by him at such inspection and, thus, contravened the provisions of Section 310 of the Code of Criminal Procedure, 1973 (hereinafter called the new Code), which provides that the Magistrate "shall without unnecessary delay record a memorandum of any relevant facts observed at such Inspection", and that, such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case so desires; a copy of the memorandum shall be furnished to him free of cost." It is also manifest that the parties had no opportunity of being heard and addressing arguments etc. on the facts observed by the learned Magistrate In the case of the local inspection. on the facts observed by the learned Magistrate In the case of the local inspection. As I have already stated, arguments were beard finally on 22-1-1978 and the local inspection was made on 11-2-1978 and ORDER :s were passed without hearing any further arguments. Both the parties were, therefore, deprived of an opportunity of addressing arguments on the facts observed during the course of local Inspection and the first party was deprived of opportunity of explaining and controverting the facts observed which were prejudicial to his case, Inasmuch as it appears from the, ORDER :that the learned Magistrate found, contrary to the case of the first party, that the disputed land was not amalgamated with the other lands of the first party comprised In S. P. nos. 408 and 410. Now the object of recording a memorandum of the relevant facts observed is two-fold Firstly, it is intended to guard against mistakes which may occur by relying on human memory. The second object as pointed out by Sahay, J., In (1) Manik Chand V. Bhubneshwar Prasad (AIR 1961 Patna 278), is that, "the parties may have noticed that hose facts have been noted and might be used". It is a fundamental principle of judicial procedure that no party should be condemned unheard, that be should have reasonable opportunity of being heard before a decision adverse to him is made. It is also well settled that a reasonable opportunity of being heard includes the right to be apprised of materials adverse to the party and a reasonable opportunity of explaining and controverting the same. If, therefore, a party is not apprised of material prejudicial to his case which is proposed to be used against him and is not given an opportunity of explaining and controverting the same there is a contravention of the principles of natural justice. As I have said earlier, the fact observed by the learned Magistrate which he has untilised was Ii fact highly prejudicial to the claim of possession of the first party, and, therefore, 'the principles of natural justice demanded that the first party should have been apprised of that fact and given an opportunity of explaining and controverting the same. As I have said earlier, the fact observed by the learned Magistrate which he has untilised was Ii fact highly prejudicial to the claim of possession of the first party, and, therefore, 'the principles of natural justice demanded that the first party should have been apprised of that fact and given an opportunity of explaining and controverting the same. As no memorandum was recorded and placed on the record, the first party was not apprised of that fact, and as no further arguments were heard, the first party was denied the opportunity of explaining and controverting the same. The use of the fact observed in course of the local inspection of the learned Magistrate in the present case contravened the principles of natural justice. 5. It is true, as pointed out by the learned counsel of the opposite party, that the first party or his representative was present at the time of the local inspection and on behalf of the first party, it was pointed out that what appeared to be ridge was an irrigation channel. It does not appeal from the ORDER :, however, if at that time the Magistrate had expressed his opinion that he was going to record that he had found a ridge between the fields and not merely a water channel, and, therefore, it cannot be said that because of this circumstance, it must be held that the first party had an opportunity of controverting the facts observed at the time of the local inspection. In his ORDER :, the learned Magistrate has referred to the fact that while on one side of the irrigation channel there was merely the bank of the channel, on the other side there was a ridge also. It does not appeal from the ORDER :whether this feature was pointed out to the first party and he was asked to explain this. It must, therefore, be held that the use of the facts observed by him during the course of the local inspection, contravened the principles of natural justice. I am fortified in this conclusion by a number of decisions of this Court. 6. It must, therefore, be held that the use of the facts observed by him during the course of the local inspection, contravened the principles of natural justice. I am fortified in this conclusion by a number of decisions of this Court. 6. In the case of (2) Moinuddin and others V. Emperor (AIR 1921 Patna 415) where the learned Magistrate did not place upon the record a note of his inspection of the place of occurrence and the facts observed by him were adverse to the innocence of the accused and bad also not apprised the accused of those facts, Jwala Prasad, J., observed : "... The Magistrate admits, in the passage quoted above from his explanation, that he had already formed certain opinion on the 19th September long before he decided the case against the accused upon the local inspection; yet he did not consider it necessary to give the accused an inkling of it so as to enable them to offer any reasonable explanation of the points against them and to clear up, if possible any allusion or misapprehension that might have existed in the mind of the Judge on account of his local Inspection. Nothing more objectionable could there be than the procedure followed by the Magistrate in the case and misuse or the right of local inspection vested in the Court. In (3) Ramrup and another V. King-Emperor (AIR 1921 Patna 471), Ross J. set aside the conviction recorded in case in which the Magistrate was Influenced in the direction of accepting the Prosecution evidence by the facts observed by him in the course of local Inspection, the memorandum regarding which was attached to the record on the day on which the JUDGMENT : was delivered and there was nothing to show that the accused ever had any opportunity of ascertaining its contents and explaining the same. His Lordship quoted with approval the following passage in (4) Babban Sheikh V. Emperor (14 Calcutta Weekly Notes 422):- "The accused, if aware of the way in which the Magistrate was going to use his inspection, could have adduced evidence or shown by a further inspection that the Magistrate was wrong. His Lordship quoted with approval the following passage in (4) Babban Sheikh V. Emperor (14 Calcutta Weekly Notes 422):- "The accused, if aware of the way in which the Magistrate was going to use his inspection, could have adduced evidence or shown by a further inspection that the Magistrate was wrong. To spring such opinions or inference upon the accused at the time of pronouncing JUDGMENT : is an error of procedure that may have materially prejudiced the accused and they are quite justified in complaining that they have not had a proper trial." In (5) Athar Hussain and another V. King Emperor (AIR 1922 Patna 51) where the learned Magistrate had Called to place of the record a note of his local inspection and had used the knowledge derived by him from his inspection of the locality for the purpose of accepting the prosecution evidence. Jwala Prasad, J., quashed the conviction holding that the learned Magistrate erred in not putting on record a note of his inspection and that error had prejudiced the accused as the Magistrate had utilised the knowledge derived by him from his inspection of the locality. In (6) Parmeshwar Lat Mitter V. Emperor (AIR 1922 Patna 296) Jwala Prasad, J., pointed out that:- “....in ORDER :to give an opportunity to the accused to remove any wrong impression created on the mind of the Magistrate it is fair that a note of inspection should have been placed on the record and the parties should have been given an opportunity of being heard with respect to it.” It is true, as pointed out by Mr. Sinha appearing for the opposite party, that these decisions related to the cases of conviction, but it cannot be gainsaid that the principles of natural justice apply to a proceeding under Section 145 of the Code also. The observations regarding the object of recording the memorandum of local inspection in Manikchand's case (Supra) were made by this court in a case arising out of Section 147 of the Code. In (7) Chando Sharma and others V. Inderdeo Singh and others (AIR 1964 Patna 239), one of the reasons given for ignoring the memorandum of local inspection was that the parties had no opportunity to advance any argument on the basis of the memorandum. In (7) Chando Sharma and others V. Inderdeo Singh and others (AIR 1964 Patna 239), one of the reasons given for ignoring the memorandum of local inspection was that the parties had no opportunity to advance any argument on the basis of the memorandum. All these decisions were given with reference to the provisions of Section 539-B of the Code of Criminal Procedure, 1898 (hereinafter called 'the Old Code') but these decisions are apposite in as much as the provisions of Section 310 of the new Code arc in pari materia with the provisions of Section 539-B of the Old Code. 7. In my opinion, reliance upon the fact observed by the learned Magistrate namely that the lands of S. P. no. 411 were not amalgamated with the lands of S. P. nos. 408 and 410, was singularly unfortunate. It appears from his ORDER :that he ascertained the identity or the lands by looking into the map and making enquiries from the villagers present. The identity of the lands comprised in various survey plots with the lands on the spot could be definitely ascertained only by a person having knowledge of survey. That fact was not capable of ascertainment by a mere inspection by an individual as the learned Magistrate appears to have done. For this reason also, no reliance should have been placed upon the fact observed by the learned Magistrate in course of the local inspection. 8. The next question for consideration is whether this error vitiates the ORDER :passed by the learned Magistrate. Mr. Sinha appearing on behalf of the opposite party strenuously contended that the error, if any, in the circumstances or the case, does not vitiate the ORDER :because the finding of the learned Magistrate that the members of the second party were in possession of the lands in question is not based solely on the facts observed by him at the local inspection, but also on other evidence. Reliance is placed in support of this submission on the decision of this Court in (8) Sheobarat Singh and others V. Bharay Mahto and others (1972 B L J R 278). Reliance is placed in support of this submission on the decision of this Court in (8) Sheobarat Singh and others V. Bharay Mahto and others (1972 B L J R 278). It is true, as observed in the decision of the Calcutta High Court (AIR 1925 Calcutta 1246) which was relied upon in Sheobarat Singh's case, where the local enquiry was made in presence of the petitioner's pleader who did not, however, ask the Magistrate to record a memorandum or to attach a memorandum to the record or to give him a copy thereof, the petitioner, could not be allowed to say that for that formal defect the proceeding should be set aside, unless he could show that the Magistrate's omission had caused prejudice. In Sheobarat Singh's case (Supra) his Lordship held that even if the observation of a Magistrate with regard to the local inspection is eliminated, under Section 167 of the Evidence Act, the impugned ORDER :could safely be upheld. Having gone through the ORDER :of the learned Magistrate am not in a position to come to a similar conclusion in this case. The learned Magistrate after referring to his observation that the lands of S. P. no. 411 were not amalgamated with the lands of S. P. nos. 408 and 410, observed. "Thus, the claim of the, first party regarding existence of a block or 5 bighas miserably falls" (This Is a rough English translation of the original sentence which is in Hindi). At another place in his ORDER :the learned Magistrate has observed. "It appears from a perusal of the statements of the witnesses for the second party that they know the correct configuration of the land. . . . Their statements are corroborated by my local inspection." Thereafter, he concluded, "In the light of the aforesaid facts and circumstances I come to the conclusion that the last crop on the land had been grown by the' second party." It is thus manifest that the finding of the learned Magistrate regarding the possession of the second party bas been greatly influenced by the fact observed by him In course of the local Inspection. One can never be definite that the Magistrate would have arrived at the same conclusion on the other evidence on record independently of and after eliminating the fact observed by him at the local inspection. One can never be definite that the Magistrate would have arrived at the same conclusion on the other evidence on record independently of and after eliminating the fact observed by him at the local inspection. In these circumstances, the conclusion is irresistible that the irregularity and illegality committed by the learned Magistrate in not recording a memorandum of the local inspection and in not giving opportunity to the parties to be heard regarding the fact observed by him, has caused serious prejudice to the first party and it vitiates the ORDER :. Some other contentions were also raised by the learned counsel for the petitioner, but as the application succeeds on this ground alone, it is not necessary to refer to those contentions. 9. I would, accordingly, allow the application and set aside the ORDER :passed by the learned Magistrate declaring possession of the second party and remand the case for a fresh decision in accordance with law after excluding the facts observed by him in course of the local inspection. As Shri B. B. Ram Executive Magistrate, has already expressed his opinion, it is desirable that the case be heard by some other Magistrate. Application allowed.