Mohd. Shafi Dar vs Rasool Dar and Others

M.L. Bhat, J.—Learned Sessions Judge Pulwama has made a reference in Criminal Revision No. 22/1982 pending before him for quashing

of order passed by the District Magistrate Pulwama in proceedings u/s 145 Cr. P.C. It appears that the petitioner had filed an application u/s 145

Cr. P.C. before District Magistrate .Pulwama for initiation of proceedings under the said section against the respondents. On 15-10-1982 the

application was decided by the District Magistrate holding that the respondents were in possession and the petitioner should be restrained from

interfering in their possession. This order was assailed before the Sessions Judge by the petitioner.

From the perusal of this order it appears that on 13-10-1982 when the District Magistrate Pulwama was seized of the matter, he had gone on

spot and had recorded the statement of eleven- witnesses. These eleven witnesses appear to have been produced by the non-applicants,

respondents before him. From the record it does not appear as to whether the petitioner was present on spot or not. The witnesses whose

statements were recorded had definitely deposed against the petitioner and on the basis of their statements as also on the basis of revenue record,

the District Magistrate seems to have passed the impugned order. The District Magistrate has not mentioned anything about the consideration of

affidavits. It appears that the District Magistrate has not at all considered the affidavits. His judgment is based on the testimony of the witnesses

whose statements were recorded by him on 13-10-1982 on spot. The learned Sessions Judge has viewed the procedure to decide the case on the

basis of the testimony of witnesses on spot as bad and has held that the order dt. 15-10-1982 is vitiated.

I have heard learned Counsel for the parties at length.

Mr. Trisal appearing for the petitioner has argued that the District Magistrate could not record the statements of witnesses on spot. He could, of

course, pay a spot inspection and keep the notes as regards his spot inspection. It is further submitted that while inspecting the spot, the District

Magistrate has conducted an enquiry and he has not given an opportunity to the petitioner to rebut the evidence which has been recorded by him

on spot. Relying on the evidence recorded on spot by the District Magistrate is said to be bad and violative of the procedure. Even u/s 539B the

District Magistrate was not empowered to record the evidence on spot.

Mr. Trisal has relied on Deva Setty and Others Vs. State of Mysore, for the proposition that the inspection can be made for the purpose of

properly appreciating the evidence during the trial. Purpose of local inspection is held to be to enable the Magistrate to appreciate the evidence

which has been collected during any trial or enquiry, but the Magistrate is not supposed to record evidence when he makes the local inspection. He

may keep notes about the location or topography of the place which he has inspected in order to appreciate the evidence which has already been

collected. Another authority relied upon by him is the The State of Uttar Pradesh Vs. Het Ram and Others, . While discussing the ambit and scope

of Section 539-B, Cr. P.C. it is held by the Supreme Court that Section 539B contemplates local inspection to ascertain the topography of the

place where the offence is alleged to have been committed or its local peculiarities for the purpose of properly appreciating the evidence which was

already 'on record.

On the other hand Mr. Qayoom appearing for the respondents has submitted that Magistrate entrusted with the enquiry u/s 145 Cr. P.C. is

competent to make the local inspection of the property under the provisions of Section 539B Cr. P.C. He has relied for this proposition on an

authority reported in Basanta Basumatri and Others Vs. Dehi Ram Nath, . From the perusal of this authority it appears that the Magistrate had

gone on spot for local inspection in a dispute u/s 145 Cr. P.C. He had only tried to understand the identity of the land and had gone there to

appreciate the evidence which was already on record. While deciding the case he had perused the affidavits which were filed by the parties before

him. Therefore the principles of this authority cannot be said to be bad. This authority, however, may not help Mr. Qayoom because in the present

case the Magistrate had recorded the evidence on spot. Another authority, Chando Sharma and Others Vs. Inderdeo Singh and Others, is also

pressed into service by Mr. Qayoom. Surprisingly enough he has not read the authority carefully. It helps the petitioner rather than the respondents.

The learned single Judge of the Patna High Court while considering the provisions of Section 539B Cr. P.C. as regards proceedings u/s 145 Cr.

P.C. has held that where the Magistrate had visited the disputed property without giving notice to the parties and had recorded evidence on spot

and decided the case on such evidence without considering the affidavits, had committed material irregularity which would have the effect of

vitiating the final order. In the same authority it was held that if the Magistrate fails to consider the affidavits, the final order is vitiated.

In the present case the Magistrate had gone on spot. He should not have recorded the evidence on spot and used the said evidence against the

petitioner without affording him an opportunity to rebut it. If it is held that he had gone there u/s 539B, he has clearly over-stepped his powers

inasmuch as he has conducted the enquiry and recorded the evidence in violation of the procedure given for such enquiry. He has used the material

which he collected on spot against the petitioner and the petitioner was not asked to rebut the same. In my opinion the final order is passed on the

basis of evidence which is recorded on spot by the Magistrate in violation of powers vested in him and in violation of the procedure established in

this regard. On this count alone the order of the Magistrate is vitiated.

The Magistrate has not discussed the affidavits which were produced by the parties. In his order he has stated that he did consider the record,

which from the scrutiny of the order, appears to be the revenue record. None of the affidavits produced by the parties is perused by him or

commented upon by him. As such also the final order of the Magistrate is bad in law.

For the reasons stated above this reference is accepted and the final order passed by the District Magistrate on 15-10-1982 is quashed.

Accepting this reference, the revision petition filed by the petitioner succeeds. The record be sent back to the District Magistrate Pulwama for

writing a fresh judgment after excluding the evidence collected by him on spot on 13-10-1982. The said evidence is to be discarded and the order

is to be pronounced on the basis of the affidavits, the revenue record and other documents if any, on the file. The parties through their learned

Counsel are directed to appear before the District Magistrate Pulwama on 30-4-1985.