Ahad Trag vs Khazir Trag and ors.

(1) This revision petition is directed against an order passed on June 28, 197l by the Chief Judicial Magistrate, Anantnag under section 146 (1) Cr.

P. C. The order followed an enquiry under section 145 (4) Cr. P. C. as a result of which the learned Magistrate was unable to satisfy himself as to

which of the parties was in actual possession of the disputed land of the relevant time. Accordingly the learned Magistrate, as he put it,

directed""That the statement of facts of the case may be drawn up and sent to the Munsiff Trial along with the record to decide the question

whether any and which of the parties was in possession of the land in dispute at the date of the order as explained in Sub Section 4, of section 145

Cr. P, C.

(2) Before me the learned counsel for the petitioner urged the following two points :

1) That the impugned order is vitiated by material irregularity because the trial magistrate has failed to peruse the affidavits put in by the parties as

required by sub section (4) of section 145 Cr. P. C.

2) That the impugned order does not con. form with the provisions of section 146 Cr. P. C. and is therefore bad in law because the statement of

facts does not form part of the order and in the alternative because it was left over to be drawn up by the ministerial staff and not by the magistrate

himself.

(3) Section 145 (4), so far as relevant, provides :

The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse

the statements, documents and affidavits, if any so put in, hear the parties and conclude the enquiry, as far as may be practicable, within a period of

two months from the date of the appearance of the parries before him and. if possible"", decide the question whether any and which c f the parties

was at the dare of the order before mentioned in such possession of the said subject.

(4) According to this section the magistrate is required to peruse the statements, documents and affidavits put in by the parties and also hear them

before deciding the question of possession. Where, therefore, the Magistrate does not follow any of these requirements, the order passed by him

will be held to be vitiated by material irregularity.

(5) The word ''peruse"" in this section has some definite meaning It means, as rightly pointed out by the learned counsel for the petitioner."" to read

and examine critically"" To the same effect is the decision in A. I. R 1967 Manipur 25 relied on by the learned counsel, in which, quoting from Chan

hers 20th Century Dictionary, it was held that the word ""peruse"" means'' to examine in detail or to revise attentively or critically. ""Likewise it was

held in A. I. R, 1962 Patna, 253 that the word 'peruse"" in subsection (4) of section 145 means ""to go through critically/' As also observed therein :

''The test to find out if the magistrate has considered the affidavits, filed by the patties, is to see if he has applied his mind to them and examined

critically in detail, one by one, each of the affidavits filed by the parties and given reasons fur accepting or not accepting them. It should appear

from the order of the magistrate that he has infact given consideration to the affidavit of each deponent and had given reasons for accepting or

rejecting the same. He must mention who the several deponents are whose affidavits have been filed and why the statements contained in the

affidavits of a particular deponent should not be accepted. Each affidavit has to be considered just like oral evidence of a witness. It is to be

remembered that under the amended section 145 of the Code these affidavits have taken the place of oral evidence and now the parties have no

right to examine a witness unless his affidavit is on the record. The coerce has, therefore, been given the discretion under the First proviso of

Subsection (4) of section 145 to examine any witness, if he likes, whose affidavit has been filed, in order 11 test the statements contained therein. If

the affidavits of each party are considered in a bunch, in one lump, without giving reasons for doing so, it is no consideration of the affidavits. If,

however there exists one ground for accepting or rejecting an affidavit, and that ground equally holds good in case of other affidavits also, then

certainly in such a case the magistrate can give that one ground for accepting or rejecting the affidavits of more than one person, and he can take

them all in one lump and consider them together. The affidavits are not simply to be mentioned for the sake of formality and mechanically dealt

with. The magistrate must apply his mind to each affidavit and go through it one by one and on the facts and circumstances of the case and on the

documentary evidence on the record, see if it Can be accepted or rejected. He must peruse each affidavit and then consider and weigh it. It is his

bounden duty to do so. It should be remembered that the success of a party does nor depend on the number of the affidavits filed but on the

quality and reliability of the deponent swearing such affidavits. For instance, if a deponent, whose affidavit is on the record, is a boundary witness,

his affidavit prima facie is reliable and should be accepted unless good reasons are assigned for rejecting it. In this way, each affidavit like oral

evidence of each witness, should be considered, weighed and accepted or rejected. It is true that for lack of cross examination of the deponents,

who have sworn the affidavit, the magistrate can not be expected to give detailed reasons for accepting or rejecting the affidavits, but he should

make it apparent in his order that he has applied his mind to them.

(6) The question then is whether the learned trial magistrate has failed to peruse the affidavits put in by the parties The order of the learned

magistrate clearly shows who the deponents n either side were and what they have staged. It is true that he has not taken up the affidavits one by

one but that is so because the affidavits on either side were of common pattern with their content and phraseology also being almost the same. If,

therefore, he has considered the affidavits on either side in lump and held that they were equally balanced or that the deponents were of equal

respectability, it cannot be said that he has not applied his mind and considered the affidavits' May be that another person in his place might have

come to a different conclusion, as suggested by the learned counsel for the petitioner, but that is not the same thing as saying that he has failed to

peruse the affidavits I am therefore unable to accept the suggestion that the trial magistrate has failed to peruse the affidavits.

(7) Section 146 (1), in so far as material, provides :

If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such

possession, of the subject of dispute, he may attach it, and draw up a statement of 'he facts of the case and forward the record of the proceeding

to a civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute

are the date of the order as explained in sub Section (4) of section 145. and he shall direct the parties 11 appear before the civil Court on a date to

be fixed by him.

(8) There is nothing in this section to indicate that the statement of facts should necessarily form part of the order of reference made thereunder.

That is only a step towards the execution of that order. Accordingly there is nothing wrong with a court drawing up such statement after making the

order of reference. It is true that the statement should be drawn up by the court itself, but that does not preclude it from getting the assistance of its

ministerial staff in this behalf. Accordingly where the draft statement is prepared by the Ministerial staff and vetted and signed by the court, this is as

good as if the statement was drawn up by the court itself. In this case there is nothing on the file to indicate that the statement of facts was not

vetted and signed by the trial court. Merely because it was left over to be drawn up subsequently to the order of reference the order is not vitiated'

(c) In these circumstances I find no force in this revision petition which is hereby dismissed.