Haji Rahmatullah and Others vs Mohd. Saddiq and Others

K.P. Singh, J.—This criminal revision arises out of proceedings u/s 133 of Code of Criminal Procedure, 1898.

The applicant in the original proceedings has alleged that a public way exists in village Roorkali whereupon the opposite parties therein had put some earth and had also put their cots and thereby caused obstructions in the way, hence a prayer was made for removal of the obstructions. A condition order requiring the opposite parties to remove the obstructions within the time fixed by the Court or to appear before himself to show cause why the order may not be enforced against him, was passed on 13-2-1973. In reply to the above conditional order the opposite parties denied that there did exist any public path on the spot alleged by the applicants.

The learned Magistrate by his order dated 13-9-1973 passed the following order:

Maine prarthi ke parathana patra, report police mashmula misil wa vipakshigarn dwara prastut sakshya ko bhali bhanti dekha wa us par gaur kiya hai. In sab ko pud tarah adhyayan karne ke uprant main is nishkarsh par pahunchta hun ki vipakshigarn apne inkari bayan ki pushti men vishwas yogya sakshya prastut karne men asafal rahey hain; jis bayan men unhon-ne vivadit asthal par rasta aam honey wa uske aam janta dwara bataur rasta aam is-temal karne ya internal karne ke adhikar se inkar kiya hai.

Felatah etad-dwara adcsh diya jata hai ki ubhay paksh apna apna sabut dhara 137 Jabta Faujdari ke antargat pesh karen.

Against the aforesaid order a revision was preferred by the applicants, which was dismissed by the 1st Temporary Civil & Sessions Judge, Muzaffarnagar by his order dated 18-2-1974, who has observed as below:

The law does not require that the Magistrate should write a detailed judgment discussing the entire evidence and giving reasons for the findings arrived at as is necessary in the case of judgment of trial. The mere fact that the judgment does not contain the discussion of the evidence or the reasonings on which the evidence was held to be unreliable does not mean that the evidence was not considered and the order is perverse. Accordingly, I see no force in the contention of the learned Counsel for the applicants.

Learned Counsel for the applicants in revision before me has placed reliance upon a ruling Musaddi v. State 1971 AWR 112. He has invited my attention to the following observations made in paragraph 5 of the aforesaid ruling:

Suffice it to say that the reason why the order recorded by the learned Magistrate deserves to be set aside is that the learned Magistrate has recorded no reasons whatsoever for describing the evidence led by the applicant Musaddi Lal and another as unreliable.

The order dated 13-9-1973 passed by the Tahsildar Magistrate in the case giving rise to the present revision is not a speaking order. In my opinion the order does not disclose any reason as to why the evidence adduced on behalf of the present applicants was not reliable. The 1st Temp. Civil & Sessions Judge, Muzaffarnagar has also taken a wrong view in observing that the mere fact that the judgment did not contain the discussion of the evidence or the reasonings on which the evidence was held to be unreliable did not mean that the evidence was not considered and the order could be termed as perverse. It is well known mat if the order does not disclose reasons, it is no order in the eye of law and in this view of the matter 1 think that the order passed by the Tahsildar Magistrate on 13-9-1973 is vitiated in law and was wrongly confirmed by the 1st temporary Civil and Sessions Judge, Muzaffarnagar.

In this case the applicants in revision have produced C.H. Form No. 41, and the learned Counsel for the applicants contends before me that the aforesaid document discloses that there was no pathway on the alleged spot. There is no discussion in the order of the learned Magistrate or in the order of the 1st Temporary Civil & Sessions Judge, Muzaffarnagar as to whether the document could be relied or could not be relied upon in support of the contentions raised by the present applicants. The non-consideration of the aforesaid document has also brought mistakes of law in the impugned order.

For the reasons given above, the revision is allowed, and the order passed by the Tahsildar Magistrate dated 13-9-1973 and that of the 1st Temp. Civil & Sessions Judge, Muzaffarnagar dated 18-2-1974 are set aside and the learned Magistrate is asked to proceed with the case in the light of the ruling mentioned supra and the observations made by me above.