Ram Narain Singh and Others vs Dhonrai Gope

Ross, J.—The petitioners are the second party to a proceeding u/s 145, Criminal Procedure Code, in which possession has been declared to be in the 1st party. The first ground which is urged for revision of the order is, that none of the depositions of the witnesses were read over to them as required by Section 360, Criminal Procedure Code, and, therefore, the presumption of correctness does not attach to the record u/s 80 of the Evidence Act because the evidence was not taken according to law, and, therefore, whether admissible or not, it is of no value and there is nothing to support the finding.

In reply, it is contended that Section 360 does not apply to trials under Chapter XII because there is no accused in such a proceeding. I cannot agree to this argument. If the word "accused" in that section does not include persons against whom an order u/s 145(1) has been drawn then there is a plain inconsistency in the section itself and the Court must construe it as best as it can. If so interpreted, the section must, at least, mean that in the case of proceedings under Chapter XII the evidence must be read over to the witnesses.

It is further argued that, even if there is a defect in the manner of recording the evidence, that does not invalidate the trial itself. The decisions are not consistent; but the weight of opinion is that, where there is this defeat in the record of the deposition, the witness cannot be convicted of perjury in a subsequent trial. But it is altogether a different proposition, and one for which there is no authority, that because the depositions were not read over to the witnesses there was, therefore, no evidence before the Magistrate on which he could come to a finding on the question of possession in the trial in which these depositions were made. I can see no ground in principle for such a contention and this objection must be overruled.

The second ground is, that one Fadulli Mandar was also a tenant of a portion of the land in dispute and as he was no party to these proceedings, the proceedings are bad for defeat of parties. This question is concluded by the decision in Krishna Kamini v. Abdul Jubbar 30 C. 155 : 6 C.W.N. 737 (F.B.) and the contention must fail.

The third ground is, that the order u/s 145(1) was drawn up on the 5th January 1921, the Police reported that the petitioners had taken possession of the land on the 9th October 1920 and, therefore, the Magistrate had no jurisdiction to declare the opposite party in possession but could only declare the petitioners in possession. If, in fact, the petitioners dispossessed the opposite party more than two months before the 5th January 1921 then, clearly, the Court had no jurisdiction to declare the possession of the opposite party. But the Magistrate finds that there was no actual possession by the petitioners. He refers to the Police report and to the evidence on this point in detail and comes to the conclusion that such a stealthy act of ploughing and sowing when the opposite party was absent in Court in the most haphazard manner, cannot be held to be an act of possession. De facto possession, with which alone these proceedings are concerned, means effective occupation or control. The Magistrate evidently thought that the exclusive power of control by the petitioners could not be said to be manifest in these acts. On the facts I cannot say that the Magistrate was not entitled to find that there had been no change of actual possession, therefore, there is no question of jurisdiction.

The application is dismissed.