CHANDRADIP SINGH Vs. R B B VERMA

JUDGEMENT

(1.) This is an application filed by nine petitioners, under Article 227 of the Constitution of India. These petitioners were members of the first party in a proceeding Under Section 145 of the Code of Criminal Procedure which was pending before a Magistrate, 1st Class, at Jahanabad, in case No. 175 M/81 of 1958. About 40 bighss of land of village Kalu within the jurisdiction of Arwal police-station was in dispute between the petitioners and the members of the opposite party. The learned Magistrate by an order dated the 9th of February, 1959, attached the disputed lands Under Section 146(1) of the Code of Criminal Procedure and directed the parties to appear before the Court of the Munsif at Jahanabad on the 24th of February, 1959, for the decision of the question as to which of the parties was in possession over the disputed land. The matter thereafter went before the Munsif of Jahanabad in Miscellaneous Case No. 32 of 1959. The proceeding before the learned Munsif of Jahanabad was covered by Sub-sections (1A) and 1(B) of Section 146 of the Code of Criminal Procedure. Ultimately, by a judgment and order dated the 18th of September, 1959,' the learned Munsif held that the. members of the Second Party were in possession of the disputed property from the year 1953 and that the members of the first party were not in possession. The record of the case was returned to the Sub-divisional Magistrate, for passing necessary orders under Sub-section (IB) of Section 146 of the Code. The present petitioners have come up to this Court complaining of the order passed by. the learned Munsif on the 18th of September, 1959. It may be stated here that further proceedings in the Court below have been stayed by this Court by an order dated the 28th of September, 1959, while admitting this application.

(2.) learned Counsel for the petitioners submitted, mainly, that the order of the learned Munsif dated the 18th of September, 1959, is not in accordance with law,' inasmuch as the learned Munsif has not complied with the specific requirements of Sub-section (1A) of Section 146 of the Code of Criminal, Procedure. This argument of the learned Counsel is based on the fact that the petitioners; who were the first party in the proceeding Under Section 145 of the Code, had filed -affidavits of 29 persons two were before the learned Magistrate when he had passed the order on the 9th of February, 1959, and which affidavits were on the record before the learned Munsif when he was dealing with the case. It has been mentioned in paragraph 5 of the petition filed in this Court, that the petitioners had filed affidavits of 29 persons which had been sent to the learned Munsif with the record of the case. It appears from paragraph 6, that the petitioners had filed various other documents also before the learned Magistrate but that they had withdrawn those other documents, for the purpose of filing them before the Canal Department. It is, therefore, urged that the order of the learned Munsif, dated the 18th of September, is vitiated on the ground that the learned Munsif has not considered the several affidavits that had been filed by the first party and which were on the record of the case. It is argued that the learned Munsif has specifically mentioned that he found no documents filed on behalf of the first party and that this conclusion of the learned Munsif, so far as this case is concerned, is wrong, inasmuch as the affidavits which were already on record, should have been perused and considered as part of the evidence in the case. Substantially, upon these arguments it is submitted by the learned Counsel for the petitioners that the order of the learned Munsif should be quashed.

(3.) The history of this unnecessarily protracted litigation appears to be as follows. At the time when the proceeding Under Section 145 of the Code of Criminal Procedure was pending before the learned Magistrate, the parties had filed a large number of documents including a large number of affidavits of many persons. Under the amended Section 145 of the Code of Criminal Procedure,' the learned Magistrate had to peruse the statements of the parties, the documents and affidavits filed by them, hear the parties and conclude the enquiry by deciding the question as to which of the parties was in possession. The order of the learned Magistrate in this case, dated the Seth of February, 1959, hardly indicates that the learned Magistrate took the trouble of coming to his decision, upon considering the materials before him. The learned Magistrate has stated thus; Both the parties are armed with volumes of documents which are contradictory and highly confusing and do not lead to definite finding on fact of possession. Both the parties have also filed affidavits of many persons which appear to be oaths against oaths and does not help in determining the fact of possession. So I am unable to decide as to which of the parties is in possession over the disputed lands and so I consider It necessary to refer the matter to the Civil Court Under Section 146 CrIPC to give a finding on the fact of possession. It is apparent to me that the learned Magistrate made no serious effort to consider the affidavits mentioned by him in his order. Disposal of cases Under Section 145 of the Code of Criminal ProceduTe, where affidavits have been filed by both the parties, stating that these affidavits appear to be oaths against oaths, has not been approved by this Court in a large number of decisions. Reference may be made to a decision of this Court, in the case of Shah Jamilur Rahman v. Abdul Aziz . It was stated in this case that the Magistrate should consider the affidavit of each deponent and should give his reasons for accepting or not accepting it. The order in this case was set aside on the ground that the Judgment of the learned Magistrate was vitiated for the consideration of a the affidavits fifed on behalf of the parties. Again, in the case of Rudra Singh v. Simla , the judgment the learned Magistrate was set aside on the ground that he had not considered the affidavits filed on behalf of the parties at all. It was mentioned in this decision that the affidavits cannot be brushed aside by saying that they are oath against oath. It was held that the Magistrate should consider the affidavits in the same manner in which oak evidence is considered. In another decision of this Court, in the case of Arjurv Singh v. Singheshwar Choudhary , it was again held that the Magistrate had to consider the affidavits and give reasons for accepting the affidavits of one or the other of the parties. Our attention has also been drawn to a recent decision of a Division Bench of this Court in the case of Shreedhar Thakur V. Kesho Sao, Criminal Revn. No. 625 of 1958 D.0017-10-1960 (Pat), in which it was stated thus: Sub-section (1) of Section 146 lays down that a Magistrate can make a reference to a Civil Court, (1) if he is of opinion that none of the parties was in possession of the subject of dispute on the date of the proceeding, or (2) if he is unable to decide as to which of then was then in such possession. As I have already said,1 the Magistrate did not, in this case, make any attempt whatever to consider or discuss the evidence in order to find whether one or the other party was in possession or none of the parties was in possession. A Magistrate cannot take recourse to Section 146 (1) merely for the purpose of shifting his own responsibility. It is only when either of the two contingencies mentioned in the sub-section arises that he can refer the case to the Civil Court. From the exposition of law made by this Court, subsequent to the orders passed in the instant case, it is clear that the order of reference made by the learned Magistrate on the 9th of February, 1959, was not a proper order "at all.