RATNAKAR BARGAI v. HAKDAM BARGAI — 1997 DIGILAW 8 (ORI)

JUDGMENT : R.K. Dash, J. - The petitioners, second party members in a proceeding u/s 145, Cr.P.C. have assailed the legality and correctness of the order passed by the learned Magistrate and affirmed by the revisional Court. 2. On the application being moved by the first party opp. party herein, initially a proceeding u/s 144, Cr.P.C. was initiated. Later on, it was converted to one u/s 145, Cr.P.C. and parties were given opportunity to file written statement. It would appear from the impugned order that the opp. party filed his written statement, but the petitioners did not. On 26.2.1994 the petitioners sought for adjournment to file written statement, but when the case was called none appeared for them for which prayer was refused and the case was adjourned to a future date for orders. On the adjourned date, as it appears, the learned Magistrate upon perusal of the written statement and the document of the opp. party, passed the impugned order declaring possession of the disputed land in his favour. Aggrieved thereby, the petitioners carried Revision to the Sessions Court and the learned Additional Sessions Judge, Bargarh upon hearing the parties declined to interfere with the said order and dismissed the revision. 3. Learned senior counsel Sri R.K. Mohapatra appearing for the petitioners contends that the impugned order of the Magistrate is a non-speaking order, inasmuch as there was no application of mind to the facts of the case and claim advanced by the opp. party, and because the petitioners failed to file written statement the learned Magistrate by drawing presumption came to hold that the opp. party is entitled to retain possession of the disputed land. He further submits that the proceeding u/s 145, Cr.P.C. being quasi-civil in nature, the petitioners even without filing written statement could have contested the same if opportunity was afforded to them by fixing a date of hearing. But it was not done so, and therefore, to undo the wrong, the Court by invoking inherent power as envisaged in Section 482, Cr.P.C. should set aside the impugned order and remand the case for fresh hearing. Sri P.K. Mohanty, learned counsel for the opp. party on the other hand vehemently urges that since there is a statutory bar to entertain a second revision by the aggrieved party, the Court cannot interfere with the impugned order in the garb of exercising inherent power. Sri P.K. Mohanty, learned counsel for the opp. party on the other hand vehemently urges that since there is a statutory bar to entertain a second revision by the aggrieved party, the Court cannot interfere with the impugned order in the garb of exercising inherent power. Nextly he urges that the learned Magistrate having applied his judicial mind to the facts narrated in the written statement and on scrutiny of the available document recorded finding of possession in favour of the opp. party, and, therefore, it cannot be said that there was abuse of the process of the Court which requires interference of this Court in exercise of inherent power. 4. To appreciate the contentions raised at the Bar, it will be appropriate to reproduce the ultimate conclusion of the learned Magistrate which runs thus : "On perusal of document and discussion made above it is presumed that O.Ps. have no claim over the disputed land. Hence, it is order that the 1st party is entitled to retain the possession of case land unless and until evicted by a proper Court of law, inform Officer in charge accordingly." The claim of the opp. party in the written statement reference of which was made by the learned Magistrate was that the land in question was jointly recorded in his name and others and in an amicable partition amongst the recorded tenants the same fell in his share which he has been possessing peacefully. The said claim was however, not supported by oral or documentary evidence. Learned Magistrate although has observed to have made reference to the documents so produced by the opp. party, but the order is silent as to what document/documents he referred to. Section 145(4), Cr.P.C. mandates that it is obligatory for the Court to hear the parties, receive all such evidence as may be produced and only thereafter, if possible decide which of the parties was, at the date of the preliminary order in possession of the subject of dispute. The expression "Receive all such evidence" signifies that the Magistrate shall receive all evidence so produced. A party can be able to adduce evidence if reasonable opportunity is afforded by the Court. It therefore, becomes necessary for the Court to specify the date to enable the parties to produce evidence, both oral and documentary in support of their case. The expression "Receive all such evidence" signifies that the Magistrate shall receive all evidence so produced. A party can be able to adduce evidence if reasonable opportunity is afforded by the Court. It therefore, becomes necessary for the Court to specify the date to enable the parties to produce evidence, both oral and documentary in support of their case. In the present case as it appears, the petitioners were denied of such opportunity since because they failed to file written statement. This procedure adopted by the learned Magistrate has no sanction under law. Even without filing written statement the petitioners could have led evidence had they been given a chance for that. To my mind, therefore, a grave injustice has been caused to them and the case has been decided against them without following the basic requirement of law. Besides that, the case may be viewed from another angle. In the finding of possession as recorded by the learned Magistrate based on evidence ? As we all know 'evidence' means both statements of witnesses and documents. So a party to a proceeding has option to bring on record either oral evidence of the witnesses or the documents or both. The opp. party in the present case admittedly did not adduce any oral evidence. It appears from the concluding paragraph of the impugned order as extracted above, that the learned Magistrate perused the document as produced by the opp. party. But curiously enough it is not clearly spelt out from the said order as to the nature of document that he referred to for his subjective satisfaction that it was the opp. party who was in possession of the disputed land on the date of the preliminary order. Therefore, it being a non-speaking order, cannot be allowed to be sustained. 5. The above being my finding, the next question that arises for consideration, is whether this Court should be slow to interfere with the impugned order of the Magistrate in exercise of inherent power since the revisional Court declined to do so. Therefore, it being a non-speaking order, cannot be allowed to be sustained. 5. The above being my finding, the next question that arises for consideration, is whether this Court should be slow to interfere with the impugned order of the Magistrate in exercise of inherent power since the revisional Court declined to do so. Needless to say, powers of the High Court u/s 482, Cr.P.C. cannot be equated with its power u/s 397, Cr.P.C. Section 482, Cr.P.C. starts with nonobstante clause, inasmuch as it says that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such order as may be necessary to give effect to any order under this Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Therefore, inherent power is not limited or abridged on the ground that no second revision as envisaged u/s 397, Cr.P.C. is maintainable. However, the only embargo in the exercise of such power is that if the order impugned is based on the appreciation of facts and the same is affirmed by the revisional Court; then in that case it would not be within the province of this Court to sit upon the said order by invoking inherent power. 6. On careful consideration of the facts and circumstances of the case, I am of the firm view that the impugned order declaring possession of the disputed land in favour of the opp. party being based on no evidence whatsoever is illegal and without jurisdiction, and therefore, in order to prevent abuse of the process of the Court and to secure ends of justice the same should be set at naught in exercise of inherent power. Consequently the impugned order is set aside and the case is remanded to the learned Magistrate with a direction that he shall afford reasonable opportunity to the parties to lead evidence and thereupon pass orders in accordance with law. Both parties are directed to appear before him on 30.1.199.7 to receive further direction. On that day, the petitioners if so desire may file their written statement. The whole exercise shall be completed by the end of May, 1997. With the above observation, the Criminal Misc. Case is disposed of.