CHANDO SHARMA Vs. INDERDEO SINGH

JUDGEMENT

(1.) The second party in a proceeding under Section 145 of the Code of Criminal Procedure are the petitioners. The application is directed against the final order.

(2.) Appearing on behalf of the petitioners, the first point which Mr. Nagendra Prasad Singh has urged is that the learned Magistrate committed an illegality in making a surprise inspection of the disputed land. This appears to be correct. Under Section 539-6 of the Code of Criminal Procedure, any Judge or Magistrate may hold a local inspection after due notice to the parties. The learned Magistrate has himself referred to his inspection, as a surprise inspection which means that he did not give notice to the parties. He heard arguments on the 23rd November, 1960, and fixed the 30th November, 1960 for judgment but, on the 25th November, 1960, he held the inspection. As required by Section 539-B, he has recorded a memorandum of relevant facts observed by him at the inspection, but no copy of it was made available to either party for the simple reason that arguments had already concluded. The parties had, therefore, no opportunity to advance any argument on the basis of the memorandum. The memorandum must, therefore, be ignored. If the Magistrate wishes to hold a local inspection in order to appreciate the evidence given before him, he may do so after giving notice to the parties. He should also make available copies of the memorandum to the parties before he hears the arguments.

(3.) Another point which Mr. Singh has urged is that the Magistrate has not considered the affidavits filed on behalf of the parties. There is substance in this point also. The learned Magistrate has mentioned that 17 affidavits had been filed by the first party and 22 by the second party. He has not considered a single one of them. As held in Shahjamilur Rahman v. Abdul Aziz, 1960 BLJR 179: (AIR 1960 Pat 240), Rudra Singh v. Bimla Debi, 1960 BLJR 328: (AIR 1060 Pat 505) and Narain Ganjhu v. Mt. Pancho Gaunjhin, 1960 BLJR 428: (AIR 1960 Pat 519), he must consider the affidavits just as oral evidence is considered. It is true that he cannot be expected to give very detailed reasons for accepting or rejecting the evidence because there is no cross-examination, but his discussion must be such as to satisfy this Court that be has applied his mind to the affidavits.