Ram Saran vs Deep Chand and others

D.S. Tewalia, J.—The short question that arrises for consideration in this revision petition is whether a Magistrate while trying an application presented before him u/s 145 of the Code of Criminal Procedure aught or aught not to take into consideration the affidavits placed on the record by the parties for the purpose of deciding as to which one of the two contending parties was in possession of the land in dispute at the relevant time. The learned Session Judge in his report, dated 22.11.1968, has stated that the learned Magistrate concerned did not take into consideration the affidavits placed on the record by the Petitioner and he has recommended the acceptance of the revision filed by the Petitioner.

Before deciding as to whether the learned Magistrate has complied with the requirements of law the provisions of Sub-section (4) of Section 145 Code of Criminal Procedure, applicable to the order of the kind, require to be noticed and, for facility of reference, they are reproduced below:

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 inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein:

Provided further that if it appears to the Magistrate that any party has within two months next before the date of such order has been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:

Provided also that, if the Magistrate considers the case one of emergency, he at any time attach the subject of dispute, pending his decision under this section.

A consideration of the above quoted provisions of the Code of Criminal Procedure shows that the words ''peruse'' appearing therein indicates the ambit and scope of the nature of the consideration which a Magistrate has to bring to bear on the material placed before him in the enquiry in question Before the present section was amended by Act 26 of 1955, the parties were, as a matter of right, entitled to adduce evidence by examining witnesses in support of their claims, but that procedure resulted in defeating the purpose which the summary nature of the proceedings was intended to achieve i.e. the expeditious decision of the question as to which party was in possession of the disputed property at the relevant time and so that fact necessitated an amendment of this section to shorten the time and so under the amended provision the parties concerned were only entitled to put in their claims and the documentary evidence and affidavits of such witnesses who supported their respective claims. The resultant position that emerged after the amendment was that oral evidence was substituted by affidavits of the witnesses and the Magistrate was empowered to call any person who had put in his affidavit for oral examination on oath before him, if considered necessary. The word ''peruse'' used in Sub-section (4) of Section 145 of the Code of Criminal Procedure casts a duty upon the Magistrate to critically examine the material placed before him and after careful consideration of the matter supporting the claim of the either party, he has to make up his mind as to which one of them was in possession of the disputed property at the relevant time. The learned Magistrate has to carefully go through the affidavits just as earlier he was to go through the statements of the witnesses and has to assess the value of the contents of the affidavits and then to decide as to whether he has to believe the contents of the affidavits in favour or against either of the two contestants before him. Putting in of the affidavits is not just a ritual or a bare formality and they are not to be ignored altogether. In fact, both for believing or disbelieving the contents thereof, he must assign some reasons. In the present case, a perusal of the order of the learned Magistrate show that he has merely noticed that the affidavits have been filed by both the sides. In this order, he has neither revealed the contents of those affidavits, nor he has given any thought to the same, which shows that he has ruled the affidavits out of his consideration altogether, without assigning any reason for doing so. That being the position, I find that he has not acted in accordance with the provisions of Sub-section (4) of Section 145 of the Code of Criminal Procedure. In this view of mine, I am supported by the view expressed in Naina. Sah v. Ramrup Sah AIR 1965 Pat 105, and Sahdev Mandal and Others Vs. Honga Murmu and Others,

For the foregoing reasons, I accept the recommendation of the learned Sessions Judge, set aside the order of the learned Magistrate and send back the case to him for a fresh decision in accordance with law and in the right of the observations made above. The learned Magistrate should dispose of the case expeditiously.