BEGAM RAI Vs. STATE

JUDGEMENT

(1.) This is an application against the order of the District Magistrate of Saran directing further enquiry into a complaint which was dismissed by the Sub-divisional Magistrate of Siwan. The complaint having been filed, the magistrate had asked the parties to appear before him on the 10th of Octouer, 1950. On that date as he was unable to deal with the matter, he adjourned the question of consideration of the complaint until the 16th of November, 1950, when both parties were present and were heard. Both the parties produced rent receipts from the landlords and submissions were made. The magistrate, being of the opinion that the matter was one of a civil dispute, dismissed the complaint. That order was set aside by the District Magistrate on the ground that there had been no examination of the complainant on solemn affirmation as required under Section 202 (200?) of the Code of Criminal Procedure and further that since the complainant had been declared by a civil Court to be an heir of the recorded tenant, it was not necessary for him to get delivery of possession through Court, which according to the District Magistrate appeared to be the view of the Sub-divisional Magistrate.

(2.) There can be no question on the record that the complainant must be regarded as the heir of the recorded tenant. There can, however, be no question either that the petitioner No. 1 Begam Rai was recorded in the cadastral survey as being in possession of the land in question as zarpeshgidar. Both the parties produced rent receipts respectively in support of their case of possession. The Sub-divisional Magistrate thought that there was nothing to show that the complainant had got delivery of possession over the land in dispute. His order does not indicate, as the District Magistrate seems to think, that he was insisting upon the complainant getting delivery of possession through Court. Even today, I am not informed, that the zarpeshgi under which Begam Rai came to be in possession has been redeemed. Until that zarpeshgi is redeemed, Begam Rai is in possession and entitled to the usufruct of the property, and if any crop has been cut by him, he certainly is entitled to it and not the complainant, although the latter may be the heir of the recorded, tenant. It seems to me that when there is an entry in favour of Begam Rai in the cadestral survey and he produced rent receipts before the Subdivisional Magistrate, that officer was fully justified in supposing that the dispute between the parties was in the nature of a civil dispute. On the merits, therefore, the District Magistrate ought not to have, in my opinion, ordered further enquiry.

(3.) So far as the question of non-examination of the complainant on solemn affirmation is concerned, Section 200 of the Code of Criminal Procedure does require examination of the complainant on solemn affirmation. It has been decided, however, by this Court in the Full Bench case of 'BHARAT KISHORE LAL v. JUDHISTIR MODAK', 9 Pat 707 that the failure to do so is an irregularity and not an illegality. A similar view to that taken in the Pull Bench case has been expressed by Rowland, J. in the case of 'RAGHUNANDAN LAL v. EMPEROR', 15 Pat L T 17. A similar view has been expressed by James, J. in the case of 'RAM-JAS MARWARI V. PURULIA MUNICIPALITY', AIR (23) 1936 Pat 145. The decision on which Mr. Sinha relied for the complainant, namely 'SAIDU KHAN V. GAYA PRABAD', AIR (28) 1941 Pat 144, is to my mind not relevant, apart from the question that as a single Judge Dhavle, J. could not overrule the decision of the Pull Bench of this Court in the case of 'BHARAT KISHORE LAL SINGH DEO', 9 Pat 707. It seems to me, therefore, although the Subdivisional Magistrate would have been well advised to have conformed to the provisions of the Code of Criminal Procedure and examined the complainant on oath, his failure to do so did not amount to such an illegality as to necessitate the reversal of his order of dismissal of the complaint.