Nandkishore Singh and Others vs Bigan Lohar

Rowland, J.—This is a reference by the Deputy Commissioner of Palamau recommending to this Court to set aside an order u/s 145, Criminal P.C., passed by a First Class Magistrate at Daltangunj. The dispute related to 12 bighas of land in village Bohita claimed by the first party Bigan Lohar to be held by him as a raiyat under the second party. The second party claimed it to be in his own possession as bakasht. The first party examined himself and two witnesses and was unable to produce any documentary evidence in support of the settlement of the land with him. He and his witnesses however deposed that he was in cultivating possession of the land. The second party examined witnesses whose evidence the Magistrate found not only not convincing but positively suspicious.

In the result although he had observed in his judgment that the evidence adduced by the first party was by itself not sufficient to establish his case against the second party, the Magistrate passed an order in favour of the first party because in his opinion his case had derived support from the weakness of the evidence for the other party. In this connexion he took into consideration the fact that the first party offered to give up his claim if the opposite party''s witness would take a special oath on Bhagwat Gita; but the witness refused to do so. There had been a previous dispute between the parties regarding 5 bighas of land which is the subject-matter of these proceedings. In that case Bigan had prosecuted the members of the second party u/s 447 alleging that they attempted by ploughing his field forcibly to dispossess him of 5 bighas. The case resulted in acquittal.

The grounds for the reference are that although the judgment of this case had not been given in evidence at the hearing the acquittal indicated that the second party had successfully ousted the first party at least from these 5 bighas. Secondly, it is said that the Magistrate should not have allowed himself to be influenced by the conduct of the first party in refusing to take a special oath and further that when the first Magistrate had found the evidence for the first party unsatisfactory, he should not have passed an order in his favour merely because of the weakness of the evidence for the second party but should have attached the land u/s 146, Criminal P.C. As regards the judgment of the criminal case u/s 447, the trial Court was under no obligation to take it into consideration when neither party chose to put it in evidence before him.

I have however referred to the judgment and it does not contain any finding to the effect that the maliks were in possession of the land. It proves nothing either way and it may well be for that reason that neither party chose to put it in evidence at the hearing. As regards the refusal of the first party to take a special oath, this refusal was of course not to be treated as anything conclusive but it was a matter which the Court was entitled to take into consideration along with the other evidence and it was open to the trial Court to draw such inference from this conduct of the party as it thought fit. I would accept as correct the statement of the law in Chintaman Bhat v. Shrinivas Bhat (1898) 22 Bom 680.

Finally as regards the criticizm that after finding the first party''s evidence unsatisfactory the Magistrate should not have acted upon it and passed an order in his favour, the question for determination was a question of fact. The Magistrate did not adduce any reasons for suspecting that the depositions of Bigan and his witnesses were not truthful, but what he said was that the evidence was not sufficient. The comment is not happily expressed. The Magistrate may have been thinking of the standard of proof which a Criminal Court requires before relying on prosecution evidence so as to act on it by convicting an accused person of an offence; but in a proceeding u/s 145, it would not be proper to set up any absolute standard and to say that evidence not up to this standard will not be acted on by the Court for the purpose of an order under that Section.

The proceeding u/s 145 can be decided on the balance of evidence and if the Magistrate can see his way to express an opinion that the evidence of one side is superior to the evidence on the other side, then he is entitled to and should, if possible, form a definite opinion on the question of fact who is in possession. An order u/s 146 attaching the property is a desperate remedy for cases in which the Magistrate finds it quite impossible to choose between the conflicting evidence adduced by the two sides. It would be regrettable if it were necessary to pass such an order when the first Court has been able to make up its mind in favour of one party. In my opinion if the Magistrate thought that the evidence for the first party, weak though it might be, was preferable to the evidence for the second party, it was the Magistrate''s duty to give a decision in favour of the first party and this is what the Magistrate has done. The reference is discharged.