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1984 DIGILAW 70 (PAT)

Sukhailal v. Saligram Dubey, Tahsildar Of Tisco

1984-02-21

SURENDRA NARAIN JHA

body1984
Judgment 1. This is an application for setting aside an order dated Jan. 1, 1979, passed by the Sub-divisional Magistrate, Dhalbhum at Jamshedpur, in a proceeding under S.145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by which the learned Sub-divisional Magistrate, Dhalbhum has declared the possession of the Second party who is opposite party before this Court. 2. The petitioners who were first party in the said proceeding being aggrieved by the said order moved this Court for setting aside the same. 3. Before I proceed to give the judgment, I must say that this case has a chequered career. A proceeding under S.144 of the Code was initiated on the basis of a Police report of Telco Police Station against both the parties. Thereafter the said proceeding was converted into a proceeding under S.145 of the Code. This proceeding relates to a land measuring 1.05 acres of different plots, thirteen in numbers, under Khata No.25 situate at village Kalmani Basti under Telco Police Station in the District of Singhbhum. 4. The case of the petitioners (First party) is that the lands in dispute were recorded in the name of Rupchand Lohar, father of petitioner No.1, during the last Revisional Survey. On his death, petitioner No.1 came in possession of the said land and he gave some portions of the disputed land to petitioner Nos.2 and 3 on Khai Khalasi and all the three petitioners since then are coming in possession of the land in dispute. The petitioners denied that they were ever dispossessed from the lands in question by TISCO, the Tahsildar of which is opposite party here. According to them, even the Additional Deputy Commissioner, Singhbhum was pleased to hold in Misc. Appeal No.359 of 1966-67 that TISCO had failed to prove that the recorded tenant, that is, father of petitioner No.1 was ever dispossessed. On the other hand, the case of the opposite party (second party in the proceeding) is that opposite party is Tahsildar of TISCO and the lands in dispute vested in the State of Bihar under the provisions of Bihar Land Reforms Act and the State of Bihar transferred the disputed lands to TISCO. His further case is that TISCO took possession of the disputed land from one Rupchand Lohar, father of petitioner No.1, on 27-9-1939. His further case is that TISCO took possession of the disputed land from one Rupchand Lohar, father of petitioner No.1, on 27-9-1939. It is also stated in the petition that TISCO took possession of plot No.2716 of Khata No.26 (though it ought to have been Khata No.25) on 23-5-1944 and since then the members of the second party are in possession of the lands. 5. Both parties filed their written statements, documents and affidavits of their witnesses. First party filed affidavit of four witnesses and the Second Party also filed affidavits of six witnesses. The learned Magistrate after considering all the documents and the affidavits filed on behalf of both parties declared the possession of the Second party. From the records it appears that the matter also came up before this Court earlier in Cr. Misc. No.908 of 1973 which was disposed of by this Court vide judgment dated 28-4-1974. In that judgment, the case was transferred from the file of Shri Radha Prasad, Magistrate, Ist Class, Jamshedpur, to any other Magistrate of First Class of the same place to be appointed by the Deputy Commissioner, Singhbhum at Chaibasa and it was observed that the transferee Magistrate would decide the matter after holding local inspection of the plots in dispute either himself or through Pleader Commissioner and after doing so he would decide the case in accordance with law on the basis of the evidence already on record and on the report of local inspection to be held and with this direction the application was allowed. The matter was remitted back to the Court below and the Court below after holding local inspection declared the possession of the Second party vide the impugned order. 6. The petitioners have assailed the impugned order on two grounds : (1) That the proceeding was started under the Code of Criminal Procedure, 1898 (the old Code) and, therefore, it must be decided under that Code. (2) That no copy of the report of local inspection was furnished to the petitioners and as such, there has been contravention of the provision of S.310 of the Code of Criminal Procedure, 1973 (new Code) equivalent to S.539B of the Code of Criminal Procedure, 1898 (old Code). Sub-sec.(2) of S.310 of the new Code is reproduction of sub-sec.(1) of S.539B of the old Code in verbatim. Sub-sec.(2) of S.310 of the new Code is reproduction of sub-sec.(1) of S.539B of the old Code in verbatim. So far as sub-sec.(2) of S.310 of the new Code is concerned, there has been some slight change from the old Code. The word Public "before the word" prosecutor occuring in the old sub-sec.(2) has been omitted and the words "any other party to the case" have been inserted in the new Code. Therefore, there has been no major change made so as to affect this case, which I will deal later on. 7. So far as point No.(1) is concerned, learned counsel appearing on behalf of the petitioners has relied upon a Full Bench decision of this Court in Smt. Radha Devi V/s. Mani Prasad Singh 1978 B.B.C.J. (HC) 626 : (1980 Cri LJ NOC 61) where it has been held that a proceeding under S.145 initiated under the old Code will be decided under the same Code and by the same class of criminal courts constituted under S.6 of the old Code. Learned Counsel for the opposite party has submitted that it has been decided under the old Code as the matter was remitted back by this Court to the Sub-divisional Magistrate. So there is no dispute regarding the first point. 8. So far as point No.(2) is concerned, learned counsel for the petitioners drew my attention to sub-sec.(2) of S.539B of the old Code, which reads as follows : (2) Such memorandum shall form part of the record of the case. If the Public Prosecutor, complainant or accused so desires, a copy of the memorandum shall be furnished to him free of cost." According to him, the said memorandum shall form part of the record of the case and if the public prosecutor, complainant or accused, so desires, a copy of the memorandum shall be furnished to him free of costs. The petitioners applied for certified copy of the report of inquiry made on 16-12-1978 by the Sub-divisional Magistrate. Dhalbhum at Jamshedpur, but no copy of the report was furnished to him as there was an endorsement of the Bench Clerk that no such inquiry report is in record. A certified copy was shown to me at the time of argument which I have kept on the record. Dhalbhum at Jamshedpur, but no copy of the report was furnished to him as there was an endorsement of the Bench Clerk that no such inquiry report is in record. A certified copy was shown to me at the time of argument which I have kept on the record. The certified copy shows that a petition was filed for obtaining a copy of the report vide Serial No.119 urgent dated 5-2-1979 in the Copying section of the sub-divisional officer, Dhalbhum at Jamshedpur. I have examined that certified copy where it has been mentioned "no such inquiry report is in record". Therefore, it clearly seems that the learned Magistrate, who held local inspection, did not record any memorandum of facts and as such, there has been contravention of the provisions of sub-sec.(2) of S.539B of the old Code. In support of his contention, he relied upon a decision of this Court in the case of Ram Saran Sah V/s. Prayag Yadav (1979 B.L.J.R. 247) where it was held that the order must be set aside because it was vitiated on account of the fact that in coming to his finding, the learned Magistrate has relied upon the very facts which he observed at the time of local inspection of the land in question. From the impugned order, it appears that the Learned Magistrate has also based his findings on his local Inspection. He has mentioned in the impunged order : "Asthal Nirkshan ke Samain Upasthit Gawahon Se Dakhal ki Pusti Nahi Ho Pati." It seems that the learned Magistrate, while holding local inspection, also examined some of the independent witnesses but I have already indicated above that there is no report of the local inspection on the record as noted by the Bench Clerk of the Sub-divisional Magistrate. Coming to the case of Ram Saran Sah (Supra), this point was elaborately considered by Shivanugrah Narain, J. and he observed that 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 land in dispute." According to the learned Judge, there has been contravention of the provisions as envisaged in S.310(2) of the new Code equivalent to sub-sec. (2) of S.539B of the old Code. (2) of S.539B of the old Code. Of course, that case came up for consideration for contravention of the provision of S.310 of the new Code, because the proceeding was started after coming into force of the new Code but I have already observed earlier that both the provisions have practically the same effect. The same view was taken by Sahay J. when the same point was raised under the old Code, that is, S.539B of the old Code in the case of Chando Sharma V/s. Inderdeo Singh 1963 B.L.J.R. 149 : (1964 (1) Cri LJ 534). On this point, learned counsel relied on many other decisions but I do not want to refer all the cases in this judgment. In view of these decisions, I feel no difficulty to hold that the parties are entitled to have a report of the local inspection, if any, made by the learned Magistrate in a proceeding under S.145 of the Code. 9 On the other hand, learned Counsel for the opposite party submitted that the provision of S.310 of the new Code or its equivalent provision of the old Code will not apply in the case of 145 proceeding. According to him, the provisions of S.148 of the new Code which corresponds to S.148 of the old Code will apply. S.148 of either the new or the old Code lays down that whenever a local inquiry is necessary for the purposes of S.145 proceeding with which I am concerned, a District Magistrate or Sub-divisional Magistrate, may depute any Magistrate subordinate to him to make the inquiry and the report of the person so deputed may be read as evidence in the case. Therefore, according to his submission, it is not necessary that the parties may get a report of such inquiry. With great respect, I am unable to agree with his submission. I may point out that so far as S.148 of the old Code is concerned, it deals with local inquiry and so far as S.310 of the new Code equivalent to S.539B of the old Code is concerned, it deals with local inspection. There is a difference between local inquiry and local inspection. This Court, as I have already indicated above, while dealing with this matter, directed the Magistrate to hold local inspection of the disputed lands and then decide the matter in accordance with law. There is a difference between local inquiry and local inspection. This Court, as I have already indicated above, while dealing with this matter, directed the Magistrate to hold local inspection of the disputed lands and then decide the matter in accordance with law. It is, in this view of the matter, that the local inspection was made by the Magistrate. In my view, such inspection will come under the purview of S.310 of the new Code equivalent to S.539B of the old Code. Learned counsel, for the opposite party relied on some of the decisions of different High Courts, namely, the cases of Prabir Ranjan Deb V/s. State of Assam 1970 Cri LJ 1537 (Assam) Pachaimarathan (Sheobarat Singh?) V/s. Bharat Mahton 1972 B.L.J.R. 278. All these cases deal with local inquiry. Therefore, in my view, these cases will not help the opposite party on the point at issue. I fully agree with the view expressed by my learned brother, Shivanugrah Narain, J. in the case of Ram Saran Sah (1979 B.L.J.R. 247) (Supra). 10. Having considered the question very closely and having considered the materials in all its ramifications, I unhesitatingly hold that the impugned order suffers from legal infirmity and must be set aside. As I have indicated above, this case has chequered career because the proceeding was started as far back as in the Year 1970 but still the matter is hanging from court below to this Court. Although it has travelled thrice to this Court, yet the matter has not been settled. It is well settled that any inquiry under S.145 of the Code is confined only to the question as to who was in possession of the land on the date of order irrespective of their rights and title to it. As it suffers from legal infirmity, I had no option but to remand the matter again to the court below to pass orders in accordance with law expeditiously. 11. For the reasons stated above, the application is allowed the impugned order is set aside and the matter is remitted back to the Sub-divisional Magistrate to decide the matter afresh in accordance with law.