T.N.R. Tirumalpad, J.C.
1. This reference made by the Additional Sessions Judge, Manipur, has to be accepted. A complaint was filed before the S. D. M. Thoubal, by the respondent, requesting action -Under Section 145 Criminal Procedure Code and alleging that there was dispute over one 'Sangam -of land under patta No. 67 / 125-Th.T. Hiyangiam Loukon. The S. D. M., sent the complaint for a Police Report. The Police reported that -the dispute was in respect of one 'sangam' of land under patta No. 67/225 and not under patta 'No, 67/125 as stated in the complaint petition. The learned Magistrate did not notice the contradiction between the description of the land in the complaint petition and in the Police Report. He passed a preliminary order in respect of the land under patta No. 67/225 as described in the Police Report and he also had the land kept under attachment.
After the parties had filed written statements, affidavits and documents in support of their respective claims for possession, the Magistrate passed an order on 21-4-62, that it was difficult for foim to decide the question of possession and the actual area in dispute in the evidence before him and hence he will hear some more evidence locally at the spot and hence he directed the parties to produce their witnesses at the spot on 5-5-62 and directed that the Circle Amin should also be present with maps and concerned records.
Then, he made- a local enquiry on 5-5-62 and examined at the spot one P. W., one D. W. and two Court witnesses and fixed 7-5-62 for orders. On 7-5-62, he passed an order that the land in dispute was partly under patta No. 67/225 and partly under patta No. 67/151, but that through ignorance the patta number was mentioned as 67/225 only and further that the respondent was in possession of the land. It is against the said order that this reference has been made by. the Additional Sessions Judge.
2. I am afraid that the procedure adopted by this Magistrate has been wrong throughout the proceedings. In the first place, he did not notice that the land mentioned in the complaint petition and the land mentioned in the Police Report were not one and the same, the Jand mentioned in the complaint being patta No. 67/ 125, while the land mentioned in the Police Report was under patta No. 67/225. Any way, he passed the preliminary order in respect of the land mentioned in the Police Report.
It is the duty of the Magistrate before he passes a preliminary order to know which is the subject of dispute. If the matter concerns land, then he must know in respect of which land the dispute really exists and the preliminary older must be passed in respect of the said land. The subsequent enquiry must be in respect of the land , mentioned in the preliminary order of the Magistrate. If it is found in the course of the enquiry that parties do not agree about the identity of the land or about the boundaries, he has to first find out the correct identity and description of the land.- For that purpose, he can have a local enquiry as provided Under Section 148 Criminal Procedure Code and if after the said local enquiry the Magistrate finds that the land is not correctly- described in the preliminary order passed by him, he will have to cancel the said preliminary order and pass a fresh preliminary order or at least amend it nick it in respect of the land found after the local enquiry and if he has already attached some land after the first preliminaries order he will have to order fresh attachment. After this fresh preliminary order is passed, he should call upon the parties to submit their written statements and their documents and affidavits. Unless, the Magistrate is sure about the identity and the description of the land in dispute he cannot hold an enquiry Under Section 145 (4) Criminal Procedure Code.
Here, in this case what the Magistrate did was to hold the enquiry Under Section 14J (4) Criminal Procedure Code without first ascertaining correctly what the land was in respect of which the dispute existed and it was after 'the written statements, documents and affidavits were put in by both parties that he found that he could not decide as to what the subject of dispute was or the possession of the subject of dispute. For that purpose, he held the local enquiry
3. Such a local enquiry cannot be treated as one undertaken Under Section 148 Criminal Procedure Code. Under the said section, the local enquiry should, in fact, precede the enquiry contemplated Under Section 145 (4) Criminal Procedure Code- If the, object of the enquiry was to identify the land or to have the correfct description of the land which is the subject of dispute, the said enquiry should be held even before I the preliminary order is passed or if it is done after the preliminary order is passed, the report of the enquiry must be made available to the parties and the parties must be given an opportunity to satisfy the Magistrate that any impression formed by him in the course of the enquiry against the particular party concerned was wrong. In any case, if as a result of the enquiry the description of the land in dispute as mentioned in the preliminary order is found to be incorrect, the Magistrate can proceed with the enquiry only after he passes a fresh preliminary order in respect of the subject of dispute as found in the course of the local enquiry.
What has been done Dy the Magistrate in this case is to straightway proceed to pass the order contemplated Under Section 145 (6), immediately after the local enquiry without even giving an opportunity to the parties to have their say Regarding the impression formed by him in the court of the enquiry,
4. If the local enquiry was not Under Section 148 Criminal Procedure Code, but undertaken Under Section 539-B Criminal Procedure Code it can only be a local inspection and no witnesses can be examined in the course of the said local inspection. The Magistrate cannot direct the parties to produce witnesses at the local inspection. There is no provision Under Section 145 for the examination of witnesses except of persons who had given affidavits and their examination has to be confined as to the facts contained in the affidavits. The witnesses in the present case were not the witnesses who had given affidavits. Both parties were appearing through counsel in Court. It is clear that the examination of witnesses at the spot was done without the parties having the help of their counsel.
5. Thus, the entire procedure in this case has been; wrong. An order passed by the Magistrate holding the respondent to be in possession on the strength of such an unwarranted procedure and without giving an opportunity to the petitioners to satisfy the Magistrate about the impression formed by him in the course of the local enquiry cant jot be allowed to stand. The order of the Magistrate is, therefore, set aside and the case is remaned to the lower Court for holding a fresh enquiry Under Section 145 Criminal Procedure Code in respect of the possession of the land mentioned by the Magistrate in his final order as the land which is the subject-matter in dispute.
6. Ordered accordingly.