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Haokhothang Vs. Otkhokai Kuki and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantHaokhothang
RespondentOtkhokai Kuki and ors.
Excerpt:
- - thereafter the learned magistrate passed a final order which is now complained against. in the said final order he has simply stated that he has perused the written statements and affidavits and that on due enquiry he was satisfied that the claim of actual possession of the second party on the date of the preliminary order was true. 4. a mere statement by the magistrate that he is satisfied that the second party was in possession is no decision at all as provided under section 145(4). his order. i would like to bring the above decision to the notice of all the magistrates of this territory who deal with cases under section 145 cr......145(1) in possession of the land. if he is deciding the question, he will have to state his reasons. his decision is liable to scrutiny by superior courts who have to exercise powers of revision against his order. unless the magistrate gives his reasons it be not possible for the superior courts to see whether the decision was based on valid reasons. if no reasons are given it is not possible for the superior courts to know whether the magistrate has applied his mind to the case or has acted arbitrarily.3. even the respective cases of the two parties have not been mentioned in the order of the magistrate. the explanation given by the magistrate shows that because it was a summary proceeding, he thought it was not necessary for him to give reasons. this is a mistaken impression......
Judgment:

T.N.R. Tirumalpad, J.C.

1. This reference has to be accepted. It arises out of proceedings Under Section 145 Cr.PC started at the instance of the petitioner who is the Chief of a Kuki village against the respondents who are certain Kukis of the said village who migrated to another village. The petitioner's complaint was that the respondents who were in possession of the lands in dispute left the said village on 11-4-1960 vacating the Ian3s, which were 'then taken possession of by the petitioner and other villagers and cultivated. Later the respondents attempted to re-enter the said lands on 25-7-1960 while the petitioner and his men were engaged in transplanting paddy and a breach of the peace became therefore imminent. The petition was filed on 27-7-1960. The learned Magistrate passed a preliminary order and kept the land under attachment and both parties filed written statements and affidavits in support of their respective cases. Thereafter the learned Magistrate passed a final order which is now complained against. In the said final order he has simply stated that he has perused the written statements and affidavits and that on due enquiry he was satisfied that the claim of actual possession of the second party on the date of the preliminary order was true. He has not given any reasons to show how he arrived at that conclusion. The learned Additional Sessions Judge (II) has now stated in his order of reference that the order of the Magistrate does not give any reasons for the decision which he has arrived at and that the case should therefore be remanded to another Magistrate for further enquiry.

2. I entirely agree with the learned Additional Sessions Judge. Though proceedings Under Section 145 Cr.PC are summary proceedings, they are judicial proceedings and the order of the Magistrate who deals with such a case must show that he has understood the respective cases of the two parties and that there were reasons satisfactory to him which made him prefer the case of one party as against that of the other. Section 145(4) states that, if possible, the Magistrate must decide the question whether any or which of the party was at the date of the order passed' Under Section 145(1) in possession of the land. If he is deciding the question, he will have to state his reasons. His decision is liable to scrutiny by superior Courts who have to exercise powers of revision against his order. Unless the Magistrate gives his reasons it be not possible for the superior Courts to see whether the decision was based on valid reasons. If no reasons are given it is not possible for the superior Courts to know whether the Magistrate has applied his mind to the case or has acted arbitrarily.

3. Even the respective cases of the two parties have not been mentioned in the order of the Magistrate. The explanation given by the Magistrate shows that because it was a summary proceeding, he thought it was not necessary for him to give reasons. This is a mistaken impression. The first party has stated that the second party left the village and vacated the lands in April 1960. The Magistrate has not said in his order whether he accepted this statement to be correct or not. There is the further allegation that in July, 1960, the second party again tried to re-enter the land after it had been cultivated By the first party and when transplantation operation was going on. The Magistrate has to state his reasons why he disbelieved this case of the first party. His order shows that he has not understood the case of the first party or the defence of the second party. One fails to understand how he can declare the possession of any party without understanding the respective cases of the parties. After he has understood the respective cases of the parties by a perusal of their statements and the affidavits produced; 'by them, it may be that he is not able to arrive at a decision and wants further elucidation. In such a case, Section 145 permits the Magistrate for the purpose of arriving at a decision to summon and examine any person whose affidavit has been put in as to the facts contained therein. It is clear therefore that the Magistrate has to give the reasons for his decision.

4. A mere statement by the Magistrate that he is satisfied that the second party was in possession is no decision at all as provided Under Section 145(4). His order. shows that he has simply adopted the wording in form No. 22 schedule 5 Cr.PC in passing the order. The order mentioned in the said form is something which has. to follow after he gives his decision Under Section 145(4)f as is clear from Sub-section (6) of Section 145. It is-specifically provided in Section 145(6) that if the Magistrate decides that one of the parties was or should be treated as being in such possession of the land, he shall issue an order declaring such party to be in possession. Thus the order contained in form No. 22 of schedule 5 is to follow the decision of the Magistrate which must be based on proper reasons. It has to be held therefore that there has not been a proper enquiry in this case as contemplated Under Section 145(4).

5. In this connection, I may also refer to the-decision Bansi v. Hari Singh, a Division Bench-decision of the Allahabad High Court reported in : AIR1956All297 in which this question has been elaborately dealt with in the judgment of James J. and he has come to the conclusion that the Magistrate must give a statement of reasons for his decision, sufficient to enable the High Court to determine whether he has or has not complied with Sub-section (4) of Section 145 and directed his mind to the consideration of the effect of the evidence adduced before him. All the decisions on this matter have been dealt with by the learned Judge. I would like to bring the above decision to the notice of all the Magistrates of this territory who deal with cases Under Section 145 Cr.PC

6. It is clear therefore that the Magistrate's order in this case has to be set aside and the matter has to be remanded. Ordered accordingly. As this Magistrate Shri Gokulchand Singh has already expressed his opinion without giving his reasons, the District Magistrate is directed to send this case for further enquiry to some other Magistrate. The enquiry shall be on the affidavits and documents already on record.


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