SANAPALLA KAMAYYA Vs. BAMIDI RAJANNA

JUDGEMENT

(1.) In this Miscellaneous Case the petitioners challenge the order dated 9-12-88 passed by the Executive Magistrate, Paralakhemundi and the order dated 6-1-1989 passed by the Sessions Judge, Ganjam, Berhampur and submit that the orders are without jurisdiction and there is miscarriage of justice and hence those orders should be quashed.

(2.) On perusal of the orders dated 9-12-88 it appears that the said order is not at all tenable. It appears that the learned Executive magistrate without taking any evidence in the case proceeded to the spot and visited the house in question and on the basis of the knowledge acquired by him on such visit, he proceeded to dispose of the proceeding under Section 145 of the Criminal Procedure Code and ultimately passed the order that the subject matter of the dispute is attached under Section 146 of the Criminal Procedure Code and the Revenue Inspector, Machumara is appointed as the receiver and the parties are directed to approach the competent Civil Court for determination of their rights. The learned Executive magistrate also gave further direction that the attachment is to continue till the rights of the parties are decided by the Competent Court.

(3.) The approach of the Executive Magistrate is not at all legal and it is also unwarranted. Usually a local inspection is done after the evidence is closed and if the court feels that for the purpose of appreciation of the evidence and to know the exact topography etc., the local inspection may be necessary. In such a case the court after local inspection shall prepare a memorandum of local inspection and serve the copies to both the sides and afford them the opportunity to file their objections. If any, and the memorandum is to be finalised after hearing and consideration of the objections and thereafter the magistrate may rely on such memorandum of local inspection for local inspection for appreciation of the evidence already on record.