BASANTA BASUMATRI AND ORS. Vs. DEHI RAM NATH

JUDGEMENT

(1.) THIS reference is by the learned Additional District Magistrate (Judicial), Tezpur, recommending quashing of the order passed by the Magistrate, First Class. Mangaldai, Under Section 145 Criminal Procedure Code declaring possession of the land in dispute in favour of the first party and restoring possession of the first party who was dispossessed on 7 -2 -1968 (not 7 -2 -67).

(2.) THE grounds on which the reference has been made are that the land is not identifiable and that the learned Magistrate based his decision on local inspection which was not authorised Under Section 148(I) of the Code of Criminal Procedure. The question about the identity of the land was never raised in the proceedings by any of the parties. It is, therefore, difficult in revision to entertain such a plea. With regard to the local inspection, which had been made by the learned Magistrate on 10 -11 -1968 no objection was raised by any of the parties before him although the order was passed on 29 -11 -1968. There is a memorandum of local inspection Under Section 539B. Criminal Procedure Code on the record. Perusing the order of the learned Magistrate I find that he inspected the locality in order only to appreciate the evidence produced in the case. Affidavits were filed by both sides and it appears from the order of the learned Magistrate that these have been considered and he came to the conclusion in favour of the first party. The learned Additional District Magistrate was not justified in holding that Section 148(I) is the only section under which local inspection is permissible in an enquiry Under Section 145 Criminal Procedure Code. When the District Magistrate or the Sub divisional Magistrate draws up a proceeding Under Section 145 Criminal Procedure Code, either of them may depute a subordinate Magistrate to make enquiry Under Section 148(I) and the report of that Magistrate would be treated as evidence in the case. When, however, a First Class Magistrate is entrusted with enquiry Under Section 145, Criminal Procedure Code, the only section available to him is Section 539 -B of the Code of Criminal Procedure. There is, therefore, no foundation for the objection that this local inspection was unauthorised under the law. Both the grounds fail.