1. The accused-applicant has filed this revision application aggrieved by the order of conviction and sentence passed under Section 427. Indian Penal Code, against him sentencing him to suffer rigorous imprisonment till the rising of the Court and to Pav a fine of Rs. 100/-or in default to suffer rigorous imprisonment for one month bv the Judicial Magistrate First Class, Khamgaon in summary Case No. 1952/1971 and confirmed by the Additional Sessions Judge, Khamgaon in Criminal Appeal No. 137 of 1972 filed bv the accused-appellant. The facts in brief are as under:
The complainant, who is opponent No. 2, had filed a private Criminal complaint in the Court of the Judicial Magistrate First Class, Khamgaon, against the accused under Sections 323, 448 and 427 of the Indian Penal Code. The allegations in the complaint were that the complainant's deceased father had Purchased houses Nos. 303 and 304 situate in ward No. 25 on September 1'. 1967 from one Yeshodabai Vyankat of Khamgaon. After the purchase, he had started repairs to the compound wall sometimes by the end on April 1670. When the work of construct-but Ike compound walls was in progress on April 30, 1970. the accused who is a tenant in the house of the neighbour of the complainant Rambhau Raghunath Patil and who had absolutely no right, had demolished a Part' of the walls on both the sides approximately of the length of 4'. A police report was lodged immediately on Mav 1, 1970, but no action was taken on the same. Hence the complainant's father again started construction on May 21. 1970. However on May 22, 1970, when the complainant's father had gone out, the accused demolished a part of those walls. This was seen bv the wife of the complainant, who. it was alleged, was assaulted and the complainant suffered a damage, of Rs. 100/-.
2. The learned Magistrate, after verification of the complaint bv the complainant, issued process under all the above sections. However, at the time of framing the charge, the charge was framed under Section 427 of the Indian Penal Code and the accused was discharged under Sections 323 and 448 of the Indian Penal Code. Before the learned Magistrate on behalf of the complainant, Complainant's wife (P. W. 2) was examined. Photographer Vishnu (P. W. 1) was examined who has- produced the photographs of the wall which was constructed and the part of the wall which was demolished. They are at Exs. 8 and 9-., So also their negatives were produced. The complainant also examined himself. The complainant was- cross-examined and it was suggested to the complainant whether the accused was occupying kotha for the last 20 years. From the answer given by the complainant, it appears that kotha was- in occupation of the accused. However, some sundry articles were kept by the accused in that kotha. He stated that he was not knowing whether that kotha was used bv accused for the last 20 years. From the averments in the complaint, the property has been purchased in the year 1967. Therefore the complainant may not be knowing. It was further suggested that the accused was using the vacant site as a passage before this incident. However, the complainant denied that fact. In a statement under Section 342. Code of Criminal Procedure, the accused denied to have demolished the walls. ' He had pleaded alibi. He, however, asserted that since last 20 or 22 years, he was using the vacant courtyard behind the houses of the complainant 'for goings to his kotha. In support of his. contention, he had examined two defence witnesses. One Sk. Karim (D. W. 1) was the mason who was employed bv the complainant. He had stated that the complainant himself had kept the opening. The learned Judicial Magistrate First Class rightly disbelieved this witness, in view of the photographs produced. However, the accused had also examined another witness who was the son of the predecessor-in-title of the complainant. From his mother the complainant's lather had purchased this property in the year 1967. That witness admitted that he sold the two blocks to the complainant. So also he sold some block to Khaire. He further asserted that the accused used to have egress and ingress over the site on the rear side to the complainant's house. This passage was bv the side of the complainant's latrine. He was seeing this user since last 22 years. The learned Judicial Magistrate did not disbelieve his evidence. |n paragraph 3. the learned Magistrate hfs observed; 'He (accused) cannot be allowed to do so under the assumed civil right of easement, D, W. Madhukar, no doubt, stated that the accused is using this site as passage since last 22 years. Civil Rights, whether assumed or real, cannot be investigated in this Court.' The learned Magistrate appears to have mis-interpreted the law. It is true that he has not to adjudicate upon the civil rights of the parties, but he has to find out whether the contention of accused was a bona fide assertion of a right and whether he did the act in the bona .fide assertion of the right. The learned Magistrate did not .consider this aspect of the matter. However, he held that even if the accused had a right, he was not entitled in law to demolish the walls. There was a damage of more than Rs. 60/-. Therefore, he held that the accused had committed an offence under Section 427 of the Indian Penal Code and in that view he convicted and sentenced the accused, as stated above.
3. The learned Additional Sessions Judge, while confirming the appeal, has made one factual wrong observation in paragraph 11, He'stated that the evidence of Madhukar was also not believed bv the lower Court. This is not correct from the observations made by me above.
4. The learned Additional Sessions Judge has also proceeded on the basis of the contention made before him that the accused had a right to user of wav through the backside vacant courtyard of the complainant The learned Additional Sessions Judge posed a question and observed that it is not for the Criminal Court to investigate the civil rights. The question is as to whether there is semblance of such right. Only to that extent, the Criminal Court would be within its right in discussing this point. On behalf of the accused-appellant, several authorities, six in numbers, were cited before the learned Judge and they are reproduced bv him in his judgment at P. 9. The learned Additional Sessions Judge has enunciated the proposition as conveyed to him by those authorities that 'if there is a bona fide assertion of right, then clearly the accused-appellant is protected and the Criminal Courts should not lend their hand in harassing the accused'. However, the learned Judge felt that the plea of the accused was a false plea and. therefore, these authorities did not apply to the facts of the present case. The learned Additional Sessions Judge came to -that conclusion as regards the false plea from the following observations made bv him in his judgment paragraph 15 'The position appears to be that there is a chawl situate' in the locality and there is a main road running from in front of the chawl. Therefore, clearly every tenement has got an independent right of ingress and egress from the front. In addition there appears to be a service lane from behind and each tenement has a separate ingress and egress even from the back side though it is a service lane.' The observations are made bv the learned Judge in the appeal not on the basis of any evidence before him but probably either on the submissions made on behalf of the advocate of the complainant or on his personal inspection. It appears from his observations : 'I have seen the spot, as well as the lower Court has also visited the spot.' It is. therefore, clear that the above observations reproduced by me were made bv the learned Judge not from the evidence on record but bv utilising his own knowledge at the time of inspection of the site. It may be either a correct or an incorrect observation. I have nothing to say. But the question is whether the Court has a right to use the observations made by the Court at the time of inspection for arriving at a finding of fact. The learned Additional Sessions Judge on . this view dismissed the appeal. Feelings aggrieved, the accused-applicant has filed this revision application. Two points were contended before me. One was that both the Courts, i. e.. the Judicial Magistrate and the Additional Sessions Judge, had inspected the site but they committed a breach of mandatory provision of Section 539-B of the Code of Criminal Procedure. The section reads as under:
539-B (1) Anv Judicial or Magistrate mav at any stage of any inauiry, trial or other proceedings after due notice to the parties, visit and inspect anv place in which an offence is alleged to have been committed, or anv other semblance which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given,at such inquiry or trial, and shall without unnecessary delay record a memorandum of anv relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case. If the Public Prosecutor, complainant or accused ;so desires, a copy of the memorandum shall be furnished to him free of cost.' It is an admitted position that the Judicial Magistrate, as well as the Additional Sessions Judge, probably on the request of the parties, inspected the site but they have not prepared anv memorandum. Therelore, the question of getting a copy by the accused did not arise. Reliance was place on behalf of the accused-appellant on the word 'shall' used in Section 539-B of the Code. Therefore, it was urged that it was mandatory on the part of the Magistrate to have prepared a memorandum of relevant facts observed bv him at such inspection and in support of his contention, he has relied on an authority of the Calcutta High Court reported in Lalu v. The State : AIR1960Cal776 . Re lying on the prior authority of the Calcutta High Court reported in ILR 52 Cal 148 : (1924) 25 Cri LJ 1375, (Haridav Govinda Sur v. Emperor), it was observed in the Calcutta case, cited above, that ''omission to place on record the memo- randum of a local inspection, was an illegality vitiating the conviction and not an irregularity curable bv the absence of any prejudice resulting from the defaults. He has also referred to a case of the Lahore High Court in Jawala Singh v. Emperor. AIR 1928 Lah 479 : (1928) 29 Cri LJ 719- The observations therein are:It is verv desirable that a judicial officer conducting a local investigation should place upon record the result of his inspection at once so that the parties they have an opportunity of seeing what the facts are which the judicial officer considered to be established bv the local investigation and he should never deliver his judgment relying upon that investigation without giving an opportunity to the parties to rebut hig opinion.
5. However, this High Court has taken a view in Khushal Jeram v. Emperor. ILR 50 Bom 680 : (1926) 27 Cri LJ 1151 that an omission to record anv relevant facts that may be observed bv a Magistrate, at the inspection made tinder Section 539-B. Criminal Procedure Code, 1898. is not an illegality vitiating the whole trial but is an irregularity which can be remedied under Section 537 of the Code.' The Calcutta case in (1924) 25 Cri LJ 1375 was also cited before the Bombay High Court but the High Court observed that another Bench of the Calcutta High Court had taken subsequently a contrary view that the omission is not an illegality in Forbes v. Ali Haidar Khan ILR 53 Cal 46 : (1925) 26 Cri LJ 1524. Their Lordships, therefore, observed that 'we agree with the later view and especially with the observation of Ghose, J., that there is no universal rule-that disobedience of a mandatory provision in a Statute has the consequence of nullification of all proceedings, irrespective of any question of prejudice. The case, in our opinion, falls under the provisions of Section 537 of the Criminal Procedure Code, and no interference is justified unless this omission has in fact occasioned a failure of justice. It is, therefore, necessary for the applicant-accused to show that the failure to reduce to writing the memorandum has resulted or has occasioned in failure of justice.
6. In that connection, it is necessary to find out what is the purpose of the inspection notes. The purpose of the inspection notes is laid down bv the section as for the purpose of Duff-pose appreciating the evidence. But if the knowledge gathered by the Court at the time of the inspection is used not for the Duff-pose of appreciating the evidence but for the purpose of arriving at a finding, then certainly it is miscarriage of justice and it would result in prejudicing the case of the accused-applicant. I have shown from the judgment of the learned Additional Sessions Judge that he has used his own observations for negativing the plea of the accused as regards the bona fide assertion on his part of a right of way through the back courtyard of the complainant. In my opinion, the learned Judge could not have used his own personal knowledge for that purpose and if the Court uses such knowledge gathered at the time of the inspection for the purpose of arriving at a certain conclusion, then it certainly vitiates the whole trial. It has been observed in Pritam Singh v. The State of Puniab. : 1956CriLJ805 as follows. Placitum (b) is material for our purpose. It runs-as under: .
A Magistrate is certainly not entitled to allow his view or observation to-take the place of evidence because such view or observation of his cannot be tested bv cross-examination and the accused would certainly not be in a position to furnish any explanation in regard to the same. In the absence of such test having been applied and an explanation sought from the accused in regard to the same under Section 342. it is not open to the Judge to incorporate these observations of his in the judgment and base his conclusions on the same.
This observation applies most aptly to the facts of the present case because here the learned Additional Sessions Judge has used his own knowledge derived at the time of the inspection not for the purpose of appreciates the evidence but foe the purpose of arriving at the finding and' negativing the contention raised on behalf of the accused. In my opinion, on this count alone, the order of the learned Additional Sessions Judge needs to be set aside. However, I find that the learned Additional Sessions Judge, after emoting several authorities that were pointed out to him and deducing the observations from them, failed to apply these principles to the facts of the present case. I have already referred to the substance of those observations reproduced bv him. I have also shown the contention that was formulated bv the learned Additional Sessions Judge for his replv. However, he negatived that particular contention on behalf of the accused by holding that it was a false plea. In mv opinion, this is absolutely a perverse finding arrived at by the learned Additional Sessions Judge which is not supported by any facts' established at the trial. I have also shown that the learned Additional Sessions Judge has not care-fully read the judgment of the learned Judicial Magistrate and has made an erroneous statement that the evidence of Madhukar was also not believed bv the lower Court. It was open to the learned Additional Sessions Judge, being a final Court of fact to reassess the evidence and find out whether the evidence of Madhukar was true or false. The learned Additional Sessions Judge did not do that but simply made an observation that that evidence was false. With respect to him that observation on his part is incorrect. I have reproduced the evidence of Madhukar, I have also reproduced the statement made bv the accused under Section 342. Code of Criminal Procedure. The assertion on the part of the accused is that since last 20 or 22 years, he was using the wav for going to his kotha from the back side courtyard of the complainant. Whether he had a right or what was the nature of the right, is not the matter for this Court to decide. It is only for this Court to find out whether this was a bona fide assertion on his part. 'Bona fide' means good faith. In other words there must be some evidence for asserting a bona fide icontention. In the instant case not only the statement of the accused is there, but it is supported bv the evidence of the son of the vendor who originally owned not only houses Nos. 303 and 304. but also the houses which belonged to the landlord of the accused. Such a person corning before the Court and asserting that the accused was using the wav for 20 or 22 years would go to show that the assertion of the accused was bona fide. It is observed in King Emperor v. Balkrishna Narhar AIR 1924 Bom 486 : (1925) 26 Cri LJ 254.
Where there was bona fide claim of right bv the accused to the wall in dispute and the accused had entered the complainant's house and pulled, down the addition in his absence. Held: the offence of mischief or house trespass was not made out against the accused.
7. It is further observed by our High Court in : AIR1969Bom20 , Ramchandra Govind Take v- The State of Maharashtra as follows :
Acts done or attempted to be done in bona fide assertion of a right, however ill-founded in law that right may be. cannot amount to the offence of mischief within Section 425. Indian Penal Code, or the offence of criminal trespass within Section 441, Indian Penal Code.
The facts, therefore, go to show that the accused in this case asserted a bona fide right of way. His contention wag bona fide, and in order to assert his right, he had demolished part of the wall only to facilitate a wav to go to his kotha. Therefore, the act on the part of the accused, though of demolition of the walls, is not covered bv the definition of 'mischief under Section 425 of the Indian Penal Code. The learned Judicial Magistrate First Class (and the Additional Sessions Judge, erred in convicting and sentencing the', accused. I, therefore, set aside the order of conviction and sentence passed by the learned Judicial Magistrate First Class and confirmed bv the learned Additional Sessions Judge, and acquit the accused of the offence charged. The fine, if paid, be refunded to the accused.