BATAKRUSHNA NAIK Vs. KHAGESWAR KUNDA

JUDGEMENT

(1.) THE second member of the second party is the petitioner. He assails the final order in the proceeding under Section 145 of the Code of Criminal Procedure terminating against him.

(2.) TWO questions were raised by Mr. Dhal for the petitioner. Firstly, it is contended that a proceeding was initiated under Section 144, Criminal Procedure Code by order dated 17.4.1970 at the instance of the first party who has succeeded. Therein while dispossession was admitted, the date of dispossession was not indicated. The proceeding was converted to one under Section 145 of the Code of Criminal Procedure by order dated 13.5.1970. It is contended, therefore, that dispossession being more than two months prior to the preliminary order in the proceeding under sub -section (4) of Section 145, Criminal Procedure Code, the learned Magistrate was obliged to find possession of the second party -petitioner.

(3.) THE next contention is that the learned Magistrate who disposed of the proceeding visited the spot and as is indicated in his own order, he spoke to witnesses and witnesses also gave details of disputes before him. Certainly local inspection is not meant to be used for such purpose. Mr. Dhal seeks to rely upon a decision of Das, J., in this Court in the case of Daitari Patnaik v. Hadibandhu Singh, 1972 (2) Cut WR 1309, wherein it has been observed that the Magistrates are not entitled to make local inspection. I do not endorse the view as such because it seems to be too well settled in this Court as also in series of decisions of other Courts that local inspection is permitted within its own limitations and where it is done for the purposes of appreciating the evidence already on record, objection is not taken. The decision of Das, J., therefore, would run counter to the law established in this Court and it is unnecessary to indicate further about the said decision. I am not inclined to refer this revision application to a larger bench for disposal because in the present case I am also not supporting a local inspection and its results. Even if the learned Magistrate was entitled to visit the spot, he was not entitled to make enquiries, gather evidence by talking to witnesses present at the spot, form an impression about the merit of the dispute and dispose of the dispute keeping these in view. Local inspection has its own limitations and if conducted within those limitations may not be objected to. It has often been said that when making local inspection the Magistrate should avoid making enquiries from the people on the spot as to the truth of the matter in dispute. (See AIR 1929 Lah 120, Udho Ram v. Emperor, AIR 1926 Bombay 245, Mangru Feku, In re, AIR 1959 Manipur 38, Nijamuddin v. Abdulhei). In AIR 1964 Mys 177, (Appayya Naika v. State of Mysore), where determination of the question of actual possession was largely influenced by extra -judicial information collected and observation made during local inspection was held to be vitiated. As was rightly indicated in a Nagpur decision, 39 Cri LJ 92 : (AIR 1937 Nag 274), Deljit Singh v. Emperor, a Magistrate is entitled only to embody in his inspection note the facts observed by him on the spot and not the result of statements made to him there.