DEO PRASAD SAHA Vs. RAVI RAVIDAS

JUDGEMENT

(1.) This criminal revision application is directed against final order passed in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the 'Code' dated 7-5-1987 by Sri J. Kachhap, Resident Magistrate, Rajmahal (Sahabganj) in case No. 224 of 1979 by which the learned Magistrate has declared the possession of the member of the 2nd party opposite party No. 1 opposite party Nos. 2 and 3 are formal parties. Originally Harinarain Saha was the first party in the Court below and the petitioners 1 to 3 are sons of Harinarain Saha.

(2.) This case has a long history of its own because, it appears from the record, a proceeding under Section 144 of the Code was drawn up on 12-11-1979, on an application filed by Harinarain Saha, father of the petitioners, between Harinarain Saha and opposite party No. 2 Khatim Sheikh and others. It further appears from the record that after filing of show cause etc. a proceeding under Section 145 of the Code was initiated by order dated 24-12-1979 with respect to the same plot of land. The plot of land in dispute lies in Mauza Lakhipur Sazanpur, Zamabandi No. 334, plot No. 112, Area 15 Kathas 10 dhurs. The learned counsel appearing for the petitioners submits that opposite parties Nos. 2 and 3 relinquished their claim of the possession over the disputed land in course of the proceeding in favour of Harinarain Saha and only contesting party was opposite party No. 1. After all the requirements of proceeding under Section 145 of the Code were fulfilled including the local inspection of the disputed land by the Executive Magistrate himself, in whose Court the proceeding was pending. The learned Executive Magistrate passed final order in favour of opposite party No. 1 declaring the disputed land in his possession. Thereafter the father of the petitioner, namely, Harinarain Saha moved this Court in Criminal Revision No. 648 of 1982 which was disposed of by order dated 4-7-1986 by which the final order passed by the Executive Magistrate was set aside and the case was remanded back. At the time of remand it was observed that there was no sufficient compliance of the procedure which was necessary for the learned Magistrate to hear the arguments of the parties after he made the local inspection of the spot, and thereafter he should have passed the order. In that view of the matter the impugned order was set aside and the case was sent back to the Court below for disposing of the matter afresh in accordance with law and in the light of the observations made above. It was further made clear that no fresh evidence will be adduced, but only arguments of the parties will be heard by the learned Magistrate and the matter must be disposed of within two months from the date of passing of the order.

(3.) On remand the parties were heard and thereafter the order which has been challenged in this criminal revision passed by the learned Court below. The learned counsel for the petitioners has raised two points before this Court. First that the learned Executive Magistrate has misled himself by applying the provisions under Section 310 of the Code in a proceeding under Section 145 of the Code since, according to the scheme of the Code of Criminal Procedure, both the proceedings under Sections 145, 146 and 147 fall in a different chapter of the Code of Criminal Procedure whereas Section 310 relates to different circumstances. I quite agree with the above submission of the learned counsel appearing for the petitioners. In the impugned order it has been clearly stated by the learned Court below that it held local inspection under Section 310 of the Code. Now let me examine the legal aspect of the matter. Section 145 of the Code falls within Chapter X of the Code of Criminal Procedure which relates to maintenance of public order and tranquility. Section 145 lays down procedure where dispute concerning land or water is likely to cause of peace and within this chapter there is special provision for local inspection which can be found under Section 148 of the Code and the very heading of Section Local Inquiry' which clearly provides that in a proceeding under Sections 145, 146, and 147, a District Magistrate or Sub-Divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.The report of the person so deputed may be read as evidence in the case. It is, therefore, clear that there is specific provision for local inquiry under this chapter in a proceeding under Section 145 of the Code and, therefore, the learned Executive Magistrate cannot be allowed to travel beyond the provision of law. So far as Section 310 of the Code is concerned that falls in Chapter XXIV which deals with general provisions as to inquiry and trial. From the sequence of provisions of law contained in the Code of Criminal Procedure it would appear that this chapter occurs after the Chapter dealing with warrant trial by the Magistrate and sessions trial. Therefore, it is also quite clear that Section 310 refers to a local inspection which can be held by a Judge or a Magistrate, at any state of inquiry, trial or other proceeding, in the case which in his opinion is necessary to view for the purpose of properly appreciating the evidence and trial. In this Section it has also been stated that the Judge or the Magistrate may visit and inspect any place in which an offence is alleged to have been committed or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial. It is therefore clear that this relates to procedure relating to the trial and this procedure cannot be taken recourse to in a proceeding under Section 145 of the Code.