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1986 DIGILAW 228 (PAT)

Laxman Singh v. Ram Bishun Chaudhary

1986-07-31

S.N.JHA

body1986
JUDGMENT : S.N. Jha, J This is an application for quashing an ORDER :dated 7.12.1985 and the subsequent proceedings based thereon. By the impugned ORDER :, the learned Magistrate had decided to hold local enquiry in connection with a proceeding under section 145 of the Code of Criminal Procedure (in short 'the Code') and fixed 12.12.1985 as the date for holding local enquiry. 2. The facts relevant for the disposal of this case, in short, are that the dispute relates to khata no. 165, plot no. 909 having an area of 35 decimals and khata no. 87, plot no. 910 having an area of .63 decimals situate in village Rohni within the Karpi police station in the district of Gaya. It appears that on the report of Karpi police, a proceeding under section 144 of the Code was initiated between the petitioners who are members of the second party and the opposite party who are members of the first party in the aforesaid proceeding which was subsequently converted into a proceeding under section 145 of the Code. Both the parties appeared in the said proceeding and filed their written statements. 3. According to the case of the petitioners, the petitioners 5 to 14 claim their possession over the disputed land since the time of ex-landlord on the ground that the disputed lands were given to them by the ex-landlord in token of their different types of services rendered to them. According to the petitioners no. 1 and 2, they have installed their 'Yagya Shala' and installed idols of Shivji, Parvatiji and Mahabirji. According to petitioners no. 2 and 3, they also rendered services to the ex-landlord who in return gave the disputed land to them over which they have been coming in possession prior to the vesting of the land under the Bihar Land Reforms Act. 4. On the other hand, according to the case of the opposite party, they are full brothers and claim the disputed land by virtue of the settlement made to them by the revenue authorities which according to the petitioners was also challenged in Appeal No. 39 of 1984-85 in the court of Additional Collector, Gaya. 5. 4. On the other hand, according to the case of the opposite party, they are full brothers and claim the disputed land by virtue of the settlement made to them by the revenue authorities which according to the petitioners was also challenged in Appeal No. 39 of 1984-85 in the court of Additional Collector, Gaya. 5. The learned counsel appearing on behalf of the petitioners has contended that the decision of the learned Executive Magistrate to hold local enquiry vide ORDER :dated 7.12.1985 is against the mandate of law enshrined under section 149 of the Code. It appears that a petition was also filed in the court of the learned Magistrate on 12.12.1985 stating interalia that they want to move the High Court for setting aside the ORDER :dated 7.12.1985 and to postpone the local enquiry, but the learned Magistrate vide ORDER :dated 12.12.1985 rejected the said petition and ORDER :ed that he would hold local enquiry as decided earlier by the impugned ORDER :. 6. It has been asserted in paragraph no. 13 of this petition that the learned Magistrate without appreciating the points rejected the petition and ultimately in hot haste held local enquiry himself on 12.12.1985. A report of the learned Magistrate is also on the record of this case. 7. It appears from the impugned ORDER :that learned Magistrate has relied upon a decision in the case of Ram Bihari Sahni & Others v. Shyam Bihari Lal & Others ( 1980 BLJ 164 ). It was contended on behalf of the petitioners that the learned Magistrate has misread the decision of this Court. I may indicate here that the said case is entirely on different points. In ORDER :to appreciate the points raised by the learned counsel appearing on behalf of the petitioners it is necessary to refer to the relevant provisions of section 148 of the Code which reads as follows :- "(1) Whenever a local inquiry is necessary for the purposes of section 145, section 146 or section 147, a District Magistrate or Sub divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry and may furnish him with such written instructions as may seem necessary for his guidance and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid. (2) The report of the person so deputed may be read as evidence in the case." (3) .............................. 8. The scope of local enquiry is extremely limited. It should be restricted solely to some questions relating to the feature of the property about which the dispute has arisen and should not be directed to any matter which can be proved before the Magistrate by oral evidence such as the question of actual possession. The object of local inspection is to understand and appreciate the topography of the land in dispute in ORDER :to aid the Magistrate in appreciating the evidence offered by the parties in court; but the local inspection can not take the place of legal evidence much less the result thereof can be used as basis for the decision. The question for consideration is that who can make the enquiry. The term local enquiry in section 148 of the Code contemplates delegation of judicial functions. There is nothing in law to prevent the presiding officer to make any local enquiry. The trying Magistrate can himself make the local enquiry though as a rule it is better to have the local enquiry carried out by some other person or by a Magistrate subordinate to him. This section empowers the presiding Magistrate to depute a subordinate Magistrate to make the enquiry and if however, the trying Magistrate deputes a subordinate Magistrate then any report must be taken into evidence under the Indian Evidence Act. In other words, such Magistrate must come into the witness box and depose on oath as to what he saw. In this connection, a reference can be made to the case of J.N. Broucke & Others v. Kamleshwari Narain Singh & Others (A.I.R. 1950 Patna 472). In the said case when the first party had closed their case, an application was made for a pleader commissioner to be appointed. The learned trying Magistrate appointed a pleader commissioner to make a local enquiry and directed him to report on certain specific points. The pleader commissioner in due course submitted his report and objections were taken to it by the first party which asked to be allowed to adduce rebutting evidence which was declined by the trying Magistrate. The pleader commissioner was called to give evidence by second party but was not examined at length. The pleader commissioner in due course submitted his report and objections were taken to it by the first party which asked to be allowed to adduce rebutting evidence which was declined by the trying Magistrate. The pleader commissioner was called to give evidence by second party but was not examined at length. The trying Magistrate was of the opinion that the report can be read as evidence and he greatly relied on it. His lordship while deciding that case held : "If a local enquiry was necessary, and I do not say that it was not entirely justified, the enquiries ought under S. 148 Criminal P.C., to have been held by a subordinate Magistrate. I do not regard it as a very serious error that it was not held by a subordinate Magistrate but by a pleader commissioner. The really serious matter is that the first party were not allowed to adduce rebutting evidence. The local enquiry having been held after the first party had closed their case, they were, quite clearly, entitled to adduce rebutting evidence and show that the report was erroneous and or ought not to be relied on". It was further held : “A local enquiry ought to be made either by a subordinate Magistrate or by trying Magistrate himself, and in either case the first party ought to be given an opportunity of seeing the report or the memorandum of inspection and an opportunity, if they so desire of adducing rebutting evidence.” 9. Relying on this decision. I am not agreeing with the submission of the learned counsel that the trying Magistrate himself can held local inspection. Of course he can make local enquiry, but, as a rule it is better that it should be done by some other subordinate Magistrate who is not in seis in of the case because as indicated above that the report of such Magistrate will have to be taken into the evidence with law and if the trying Magistrate himself in cases holds local inspection, then he cannot be judge and at the same time come as a witness in the witness box to prove his own report. To avoid such anamoly, it is desirable that it should be done by some other subordinate Magistrate to whom the trying Magistrate can depute in the matter. To avoid such anamoly, it is desirable that it should be done by some other subordinate Magistrate to whom the trying Magistrate can depute in the matter. It a Magistrate makes a local enquiry he must make a note of what he saw and must place it on the record so that the parties may be in a position to know what impression the Magistrate has got by the local enquiry. 10. In the instant case, I find that the trying Magistrate took decision to hold local enquiry on 7.12.1985 by the impugned ORDER :and fixed 12.12.1985, as the date for the same. On that date an application was filed before him to postpone the local inspection as the party intends to move this Court but the learned Magistrate without postponing the matter still held local enquiry and submitted his report which is on the record of this case. According to the learned counsel for the petitioner there was no justification for the learned Magistrate to show such haste in this matter. 11. As I have already indicated above that though as a matter of rule it is better to have the local inspection carried out by some other subordinate Magistrate, in that view of the matter, I quash the ORDER :dated 7.12.1985 and the subsequent ORDER :dated 12.12.1985 and the local inspection report submitted by the trying Magistrate himself and remand the matter to the trying Magistrate to depute any subordinate Magistrate to hold local inspection it he feels it necessary and proceed with the proceeding from the state prior to 7.12.1985 in accordance with law. It is expected that the trying Magistrate will not be prejudiced by his own reports. 12. With the aforesaid direction, the application is allowed.