Dilip Kumar Rai v. Jai Prakash Rai — 1993 DIGILAW 60 (PAT)

Judgment Om Prakash, J. 1. On the police report, S.D.O. Sadar, Bhagalpur, initiated a proceeding under Sec. 144, Cr.P.C. against the two parties. It was converted into one under Sec. 145, Cr.P.C. by an order dated 19-10-1985. It was transferred to the file of an Executive Magistrate. The learned Executive Magistrate considered the material on record including the documents filed by the 2nd party/opposite parties and declared possession of the 2nd party/opposite parties by an order dated 19-5-1992. Being aggrieved by such order the 1st party/petitioner has filed this criminal revision. 2. Learned Counsel for the 1st party/petitioner has argued that the impugned order is illegal as the learned Executive Magistrate has considered the documents filed by the 2nd party/opposite parties which were not formally proved and admitted into evidence which was necessary in view of the provisions of Sub-section (4) of Sec. 145 of the Code of Criminal Procedure of 1973 (Act 2 of 1974). He has relied on a decision of this Court in the case of Kandu Mushar and Ors. V/s. Jagdish Devi and Ors. 1979 BBCJ 82 . 3. Sub-sec. (4) of Sec. 145 of the Code of Criminal Procedure, 1973, is as under : The Magistrate shall 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-sec. (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-sec. (1), he may treat the party so dispossessed as if the party had been in possession on the date of his order under Sub-sec. (1). A plain reading of Sub-sec. (1), he may treat the party so dispossessed as if the party had been in possession on the date of his order under Sub-sec. (1). A plain reading of Sub-sec. (4) of Sec. 145 of the Code of Criminal Procedure, 1973, makes it crystal clear that the Executive Magistrate has to "receive all such evidences as may be produced by the parties and take such further evidences, if any, as he thinks necessary to decide possession of any of the parties". Perusal of the document simply filed but not proved as exhibits in accordance with the law of evidence for arriving at a finding of possession of any of the parties is no longer permissible under the new Code of 1973 though it was so permissible under the old Code of 1898. Thus, it is clear that learned Executive Magistrate has relied upon also on documents which are not legal evidence. I am, therefore, of the opinion that the impugned order dated 19-5-1992 cannot be sustained and is bad in the eye of law. 4 It has not been disputed before me that the documents of the 2nd party/opposite parties relied upon by the learned Executive Magistrate to declare the possession of the 2nd party/opposite parties have not been proved in accordance with the provisions of the Evidence Act. But still the learned Executive Magistrate has perused and relied upon those documents to arrive at his finding that the 2nd party/opposite parties are in possession. 5. Such documents should have been marked as exhibits in accordance with the provision of the Evidence Act before the learned Lower Court based its finding upon them. In the above Kandu Mashars case, (supra) an order under Sec. 145 of the Code of Criminal Procedure, 1973, was based on a consideration of oral evidence and documents not proved in accordance with the provisions of the Evidence Act. Then this Court set aside such order holding that proceeding under Sec. 145 of the new Code of 1973 has to be decided on the examination of witnesses and documents proved in accordance with the Evidence Act. 6. Then this Court set aside such order holding that proceeding under Sec. 145 of the new Code of 1973 has to be decided on the examination of witnesses and documents proved in accordance with the Evidence Act. 6. Reliance has been placed by the learned Counsel for the 2nd party/opposite parties on the case of Nundkishore Singh V/s. Bigan Lohar AIR 1940 Fat 113, wherein it has been held that in a proceeding under Sec. 145, Cr.P.C. (1898) it would not be proper to set up any absolute standard and to say that evidence not up to this standard will not be acted on by the Court for the purpose of an order under that section. The proceding under Sec. 145, Cr.P.C. (1898) can be decided on the balance of evidence. But in the instant case, in my opinion, question of any absolute standard is not involved. The question involved is whether the evidence not admissible under Sub-sec. (4) of Sec. 145 of the Code of Criminal Procedure, 1973, can be acted upon. 7. Reliance has also been placed by the learned Counsel for the 2nd party/opposite parties on the case of Thakur Das V/s. State of Madhya Pradesh 1978 BBCJ 12, wherein it has been held by the Supreme Court that the revisional jurisdiction conferred upon the High Court is not lightly to be exercised. It can be exercised only in exceptional cases where the interest of public require interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. Such jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on the record. 8. In my view, the instant case is not a case where the lower Court has taken wrong view of the law or has misappreciated the evidence on the record. It is a case where the lower Court has committed a mainfest illegality in relying upon extraneous matters i.e. documents not proved according to the law of evidence. Where such a manifest illegality is committed by the lower Court, the High Court must exercise its revisional jurisdiction to undo such illegality. 9. In the result, the impugned order is set aside and quashed. Where such a manifest illegality is committed by the lower Court, the High Court must exercise its revisional jurisdiction to undo such illegality. 9. In the result, the impugned order is set aside and quashed. The case is remanded to the Court below for decision afresh in the light of the provision of Sub-section (4) Sec. 145, Cr.P.C., 1973.