JAGANNATH BOSE Vs. SUDHIR KUMAR RAY

JUDGEMENT

(1.) The petitioners here assails the order dated 24.7.1996 passed by the learned Sub -Divisional Magistrate, Cuttack in Criminal Misc. Case No. 473 of 1994 rejecting the petition filed by the petitioners Under Section 148, Cr. .P.C. for a local inquiry.

(2.) THE facts of the case which gave rise to this revision are as follows : - - The present opposite party filed a petition Under Section 147,Cr. P.C. before the learned Executive Magistrate, Cuttack which was registered as Criminal Misc. Case No. 473 of 1994. It was alleged that there was dispute between the parties concerning right of user of a passage situated between the land purchased by the present opposite party from the late father of petitioner No. 2 of the revision petition and the land of the petitioners. While the said case was pending before the learned Executive Magistrate, the present petitioner filed a petition Under Section 148, Cr. P.C. for a local inquiry. The learned Magistrate while rejecting the prayer held that he does not have power himself not being a District Magistrate or a Sub -Divisional Magistrate to depute a subordinate Magistrate to hold local inquiry. He also observed that since local inspection cannot take the place of legal evidence, the question of making local inspection would be considered after receipt of evidence of both the parties or at any stage, if it is felt absolutely necessary by the Court for a just and fair decision. Against the said order, the present petitioners who were second party before the learned Magistrate filed Criminal Revision No. 676 of 1994 before this Court which came up for disposal before a Division Bench which disposed of the said revision observing as follows : '......... Considering the contentions raised before us, we find that Under Section 148 a presiding officer, at any stage of a proceeding whenever it would be found necessary. The language of the statute is very clear and unambiguous. There is no specific provision or on conclusion of recording of the evidence the fact whenever a local inquiry is necessary for the purpose as indicated above, it is up to the presiding officer to judge the situation and to find reasons for holding local enquiry as contemplated. Secondly, in an appropriate case if within the scheme of the Code of Criminal Procedure, there is no subordinate Executive Magistrate as envisaged Under Section 148, the trying Magistrate may refer the matter to either the District Magistrate or the Sub -Divisional Magistrate, as the case may be, for the purpose of appointing any Magistrate subordinate to him to hold local inquiry as contemplated Under Section 148 of the Code.'(Reported in 1995 (I) OLR 591) With the above observation, the order passed by the learned Magistrate was set aside. Later the Criminal Misc. Case came to the learned S.D.M. for disposal and learned S.D.M. while proceeding with the inquiry Under Section 147, Cr. P.C. also recorded the evidence of some witnesses including the present petitioner No. 1. The present petitioners who were 2nd party before the learned S.D.M. filed a memo on 3.7.1996 closing the evidence from their side. When the case was pending for order, they filed a petition again Under Section 148, Cr. P.C. praying for a local inquiry as envisaged under the said section. The learned Magistrate after hearing both the sides rejected the prayer by his order dated 24.7.1996, which is under challenge in this revision.