Shaima Ram vs The State of Himachal Pradesh and Another

D.B. Lal, J.—This is a reference made to this Court by the Sessions Judge, Simla, u/s 438 of the Code of Criminal Procedure. The facts which emerged may now be stated. Shri Bhagat Chand filed a complaint before the Magistrate u/s 147 of the Code of Criminal Procedure that a dispute likely to cause a breach of the peace existed regarding the user of a passage in between the house of Bhagat Chand and the house of Shaima Ram situate at village Sathla.

According to Bhagat Chand he has a right of user of that passage and that he was using it till recently when Shaima Ram along with Daulat Ram interfered with and obstructed the passage. The learned Magistrate took cognizance u/s 147 and having been satisfied on information received that a dispute likely to cause a breach of the peace existed, made the preliminary order under sub-Section 1 of that section. Thereafter the respective parties filed their written statements. Bhagat Chand produced three witnesses while Shaima Ram produced four witnesses. On June 23, 1972, the learned Magistrate passed the order saying that he made due enquiry and found that the said passage was being used by Bhagat Chand within three months next before the institution of the proceeding and that "he had studied the whole case thoroughly" and considered the material on the record. Accordingly the prohibitory order was made against Shaima Ram under Sub-Section 2 of Section 147. Against that order Shaima Ram came in revision before the learned Sessions Judge who has interfered with the order of the learned Magistrate and has recommended the case to the High Court.

According to the learned Sessions Judge, the Magistrate did not hold an enquiry as contemplated under Sub-Section 1-A of Section 147 and dealt with the case in a perfunctory manner without considering the effect of such evidence as was produced before him. Apparently he did not hear the parties as was required under that sub-section. According to the learned Sessions Judge the very order was evasive and did not prohibit any interference by Shaima Ram with the exercise of such right of the complainant. He has, therefore, recommended for the quashing of that order and for a de novo consideration of the case by the learned Magistrate.

It is manifest under Sub-Section 1-A the Magistrate has to:

(a) peruse the statements so put in,

(b) hear the parties,

(c) receive all such evidence as may be produced before him, and

(d) consider the effect of such evidence.

Only thereafter he can decide whether such right existed so that the prohibitory order could be passed. In the instant case the learned Magistrate may have perused the statements and may further have received all such evidence as was produced by the parties but prima facie he did not hear the parties nor did he consider the effect of such evidence. That was a reason why the learned Sessions Judge has recommended that the order made by the learned Magistrate be quashed. When there was a statutory requirement of hearing as provided for in Sub-Section 1-A of Section 147, it was incumbent upon the Magistrate to have heard the parties which he never did. If evidence is adduced, and if such evidence is even recorded by a Magistrate, nevertheless a party has a right to address the Court and explain such evidence. That is by no means a valuable right in the nature of support or defence of a plea. That opportunity was not given by the learned Magistrate. In his order he has written that "on due enquiry" he found that the passage was enjoyed since long and at any rate within three months next before the institution of the proceeding. He further writes that "he had studied the whole case thoroughly" and found "no necessity of hearing arguments". The final observation is that "the case was decided on the basis of the material on the file". All such observations made in the judgment, no doubt remain unsupported without any further observation as to what type of evidence was adduced and as to whether the Magistrate considered the effect of such evidence. In order to give an impression that the effect of such evidence was considered, in my opinion, some discussion of facts was necessary. At the same time I should not be misunderstood to hold that the Magistrate was required to write a convincing judgment with all meticulous care so that the revising Court could have formulated an independent judgment. The learned Sessions Judge has referred to Ratnakar Naik and Others (Second Party Nos. 1 to 3) Vs. Golakh Chandra Samal (First Party) and Others (Second Party Nos. 4 and 5), The order of the Magistrate may not be a judgment within the meaning of Sections 366 and 367 but it was absolutely mandatory on his part to have considered the effect of such evidence as was produced before him. The evidence was in the shape of written statements as well as oral statements of seven witnesses. The learned Magistrate does not even mention that he believed the statements of the witnesses produced by Bhagat Chand and for certain reasons he disbelieved the statements of the witnesses produced by Shaima Ram. Had he given opportunity of arguments to the respective parties, perhaps they would have shown in what manner a particular witness was likely to be believed or was liable to be disbelieved. That opportunity of hearing was not given and this was a flaw in the judgment.

The learned Magistrate has no doubt adhered to the Form No. 24 prescribed under the Code of Criminal Procedure and as observed by the learned Sessions Judge he has copied out that form with necessary changes. It has been held in Abdul Wahab Khan v. Mohd. Hamid Ullah AIR (38) 1951 All 238 that Form No. 24 or any other form given in the Code of Criminal Procedure is not meant to be exhaustive. They are liable to be altered and amended according to the exigency of a particular case. Therefore, simply because the learned Magistrate adhered to that form will not place him at any advantageous position. His final order was required to be in consonance with Sub-Section 1-A of Section 147 and he should have indicated that he heard the parties and also considered the effect of such evidence. Only thereafter he could decide as to whether such a right of passage existed and Shaima Ram was to be prohibited from using that passage.

The learned Sessions Judge has also observed that the order made by the Magistrate is vague but that ground does not appear to me very much correct. The learned Magistrate held that Bhagat Chand could not use the passage to the exclusion of Shaima Ram meaning thereby that he was prohibited from interfering with the user of passage by Bhagat Chand.

In this view of the matter. I accept the recommendation of the learned Sessions Judge and quash the final order dated June 23, 1972 passed by the learned Sub-Divisional Magistrate, Rampur. The case is remanded to him with a direction to pass a fresh order in accordance with law.