Sondi Singh and Others vs Sri Govind Singh and Another

Foster, J.—The parties to this dispute each claimed the land which is the subject-matter of the proceedings u/s 145 of the Criminal Procedure Code as tenants of certain of the co-sharers of the village. The Sub-Divisional Magistrate has awarded possession to the 1st party.

I am moved on behalf of the 2nd party to set aside the order of the Sub Divisional Magistrate on three grounds:

The first ground is that, as appears in the judgment itself, the Sub-Divisional Magistrate who decided the case had heard only some of the witnesses for the 2nd party and none of the witnesses for the 1st party, their evidence having been recorded by his predecessor. The Sub-Divisional Magistrate took up the case in this condition on the 5th June. 1923, whereupon the 2nd party applied that the case should be heard de novo, the application purporting to be one made under the first proviso to Section 350 of the Criminal Procedure Code. It has been urged at great length here that Section 350 of the Code empowers parties to proceedings u/s 145 of the Code to claim a denovo hearing when the second Magistrate commences his proceedings.

Now, there is no doubt in my mind after perusing the authorities cited on behalf of I the petitioners that Section 350 does apply in part to proceedings u/s 145 of the Code. It applies in so far as it provides that

whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and re-commence the inquiry.

It will be noticed that in making this quotation from Section 350, I have omitted the words "or a trial" that follow the word "iaqairy" and my reasons are such as I think bear directly upon the question now propounded. An inquiry is defined in Section 4 of the Criminal Procedure Code as including every enquiry other than a trial. This definition at once establishes an antithesis between "enquiry" end "trial." Now the proviso which Mr. Lai would ask ma to apply to this case speaks of a "trial" and also of an "accused". Here there is neither trial nor accused. It is an inquiry in the technical sense of the Code and we see that the word "inquiry" is to be found in the prescribed form of the Magistrate''s order given in Schedule V of the Code.

Looking again at the section, we see that in the first Dart which Mr. Lal would call the operative part the words are "an inquiry or a trial," whereas in the first proviso the word used is "trial". Obviously, it is not apposite to the present case to quote the Rule that the operative portion of a Section should govern its subsidiary part. The applicable Rule of construction here is expressio unius est exclusio alterius. I hold, therefore, that the Sub Divisional Magistrate was within his jurisdiction in deciding the case upon the evidence partly recorded by his predecessor and partly by himself even though the 2nd party demanded a de novo hearing.

The next point taken is, that the evidence was not read over in accordance with section 360 of the Code. This ground I may mention and the first ground which I have already diseased are not to be found in the grounds of revision. In any case, even if this second point were shown to be correct, I should not hold it to be such an irregularity as to support the proposition that the Magistrate had decided the case on no evidence at all. In arguing these two points a reference has been made to Guru Churn Sen v. Kali Nath Dass Biswas (1875) 23 W.R. 62. It is indicative of the weakness of the petitioners'' case that he has had resort to a ruling which was passed when the Criminal Procedure Code (Act X of 1882) was in force. The explanation to Section 530 of that Act, which is quoted in the ruling has no existence in the modern Section 145 and in fact Section 148 of the present Code is in direct contradiction, so the ruling is wholly inapposite and obsolete.

The third point taken need only be mentioned briefly. It is urged that the evidence has not been considered and only quoted. I have read the judgment and I consider it a carefully detailed discussion of the value of the evidence on bath sides.

The application is dismissed.