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Flori Rodriques Vs. Maxie Jerome Daniel Cabral - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 389 of 1976
Judge
Reported in(1978)80BOMLR150; 1978MhLJ627
AppellantFlori Rodriques
RespondentMaxie Jerome Daniel Cabral
Excerpt:
.....disposing of the matter on affidavits by the magistrate proper.;under section 145(4) of the new code of criminal procedure, 1973, it is no longer open to the magistrate to decide proceedings on the basis of affidavits. - - 1. this revision application raises an interesting question of law about the recent changes made in the provisions of section 145 of the code of criminal procedure, 1973. 2. the question arises under the following circumstances :it appears that maxine-respondent no. he complained that on april 19, 1975, flori's. whenever a chief presidency magis- whenever an executive magistrate is trate, district magistrate, sub-divisional satisfied from a report of a police officer magistrate or any other executive magis- or upon other information that a dispute trate specially..........made an application to the executive magistrate, greater bombay, under section 145 of the criminal procedure code, 1973 against his sister flori, brother daniel and flori's two sons conrad and farrel. he complained that on april 19, 1975, flori's. two sons had broken open the lock and taken forcible possession of the first floor. a preliminary order was passed by the magistrate on may 20, 1975. the disputed portion came to toe attached under section 146(1) of the criminal procedure code, 1973 on june 20, 1975. in support of his contention that he is the exclusive owner of the building and in exclusive possession of the disputed premises maxie filed besides his own affidavit, the affidavits of one pereira, pradhan, solkar, cecilia lawrence and glen lewis, the daughter and son respectively.....
Judgment:

Naik, J.

1. This revision application raises an interesting question of law about the recent changes made in the provisions of Section 145 of the Code of Criminal Procedure, 1973.

2. The question arises under the following circumstances : It appears that Maxine-respondent No. 1 and Daniel-respondent No. 3 are brothers and Mrs. Florid-petitioner No. 1 is their sister. House No. 94, Azad Road, Vile Parle, Bombay-57 is the subject-matter of dispute. Jerome Daniel Cabral was the father of Maxie, Daniel and Flori. It is the case of Maxie that the entire building was constructed by him from his own funds sometime in 1969 and that he was residing there with his parents and his mother died in 1970 and father in 1975.

3. On May 8, 1975, Maxie made an application to the Executive Magistrate, Greater Bombay, under Section 145 of the Criminal Procedure Code, 1973 against his sister Flori, brother Daniel and Flori's two sons Conrad and Farrel. He complained that on April 19, 1975, Flori's. two sons had broken open the lock and taken forcible possession of the first floor. A preliminary order was passed by the Magistrate on May 20, 1975. The disputed portion came to toe attached under Section 146(1) of the Criminal Procedure Code, 1973 on June 20, 1975. In support of his contention that he is the exclusive owner of the building and in exclusive possession of the disputed premises Maxie filed besides his own affidavit, the affidavits of one Pereira, Pradhan, Solkar, Cecilia Lawrence and Glen Lewis, the daughter and son respectively of Maxie's maternal uncle Luis Lawrence. That application was resisted by Flori by contending, inter alia, that she had also contributed about Rs. 10,000 for the construction of the building and that she was in joint possession of the flat. In support of her contention besides her own affidavit she filed the affidavit of her maternal uncle Luis Lawrence, Michael Cabral, one Krishna Patil and Victor Desilva. She also filed her bank pass book and letters received at the disputed address. It may be mentioned that Maxine-the applicant also filed a declaration of his deceased father Jerome Cabral made on oath on October 24, 1972, long before the matter in dispute arose, stating inter alia that the building was constructed exclusively from the earnings of Maxie.

4. The learned Magistrate after perusal of these documents preferred to accept the version of Maxie to that of his sister Flori. Among other reasons for coming to that decision, he observed in para. 5 of his judgment that no doubt Luis Lawrence, the maternal uncle of the disputing parties, an elderly gentleman had come to support Hori but he was not prepared to place any reliance on the affidavit of Luis Lawrence inasmuch as he was contradicted by his son and daughter viz. Cecilia Luis Lawrence and Glen Lewis who had filed affidavits in support of Maxie. These two deponents, it appears from para. 5 of the judgment of the learned Magistrate, had contended that Luis Lawrence was suffering from arthritis and rheumatism and that he was totally disabled and that his brain was not functioning properly and that he was unable to understand the issues. The learned Magistrate observed that it is therefore improbable that that man viz. Luis Lawrence would come to support Flori and he, therefore, believed the contention of Maxie that the respondent No. 3 Daniel, had made him sign the affidavit taking advantage of his infirmity. That is how he discarded the evidence of Luis Lawrence.

5. Having thus discarded the case of Flori, the learned Magistrate passed an order in favour of Maxie. That is why Flori has preferred this revision application.

6. Mr. Rajani, learned advocate for the revision petitioners contended that the learned Magistrate was not justified in rejecting outright the sworn testimony of Luis Lawrence favouring Flori without even seeing him or his mental condition and without testing his evidence or the evidence of his daughter and son by cross-examination. He also submitted that having regard to the provisions of Sub-section (4) of Section 145, the procedure adopted by the Magistrate in disposing of the proceedings on affidavits is illegal and must be set aside.

7. As against that Mr. Valand, learned advocate for the respondent No. 1 submitted that Flori never asked for an opportunity to cross-examine any of the witnesses and since that was not done and much less was such a request rejected by the Magistrate, there is no substance in the grievance of Mr. Rajani. He also submitted that notwithstanding the phraseology of Sub-section (4) of Section 145, if the parties do not choose to lead any oral evidence there is nothing to prevent the Magistrate to decide the matter on affidavits, and, therefore, the procedure which was followed by the Magistrate cannot be said to be illegal or improper.

8. The short question which I have therefore to consider is as to whether the procedure which was followed by the Magistrate in disposing of the matter on affidavits is proper. That leads me to a study of the provisions of Section 145 of the Code of Criminal Procedure, 1898 in juxtaposition with the provisions of Section 145 of the Code of Criminal Procedure, 1973, which shall be hereinafter referred to as the 'old Code' and the 'new Code', respectively.

Section 145(1) of the old Code. Section 145(1) of the new Code.

'Whenever a Chief Presidency Magis- 'Whenever an Executive Magistrate is

trate, District Magistrate, Sub-Divisional satisfied from a report of a police officer

Magistrate or any other Executive Magis- or upon other information that a dispute

trate specially empowered by the State likely to cause a breach of the peace

Government in this behalf is satisfied from exists concerning any land or water or the

a police-report or other information that boundaries thereof, within his local juris-

a dispute likely to cause a breach of the diction, he shall make an order in writ-

peace exists concerning any land or water ing, stating the grounds of his being so

or the boundaries thereof,within the local satisfied, and requiring the parties con-

limits of his jurisdiction, he shall make an cerned in such dispute to attend his

order in writing stating the grounds of his Court in person or by pleader, on a specified

being so satisfied, and requiring the par- date and time, and to put in written

ties concerned in such dispute to attend statements of their respective claims as

his Court in person or by pleader, within respects the fact of actual possession of

a time to be fixed by such Magistrate, and the subject of dispute.'

to put in written statements of their respective

claims as respects the fact of

actual possession of the subject of dispute

(and further requiring them to put in

such documents or to adduce, by putting

in affidavits, the evidence of such persons,

as they rely upon in support of such

claims).'

9. It may be mentioned that the portion in brackets under the old Code was added by Act 26 of 1955 and it is this provision which requires the parties to put in such documents or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. Prior to this amendment there was no such provision.

Secion 145(4) of the old Code. Section 145(4) of new Code,

'The Magistrate shall then, without reference 'The Magistrate shall then, without reference

to the merits or the claims of any or the merits or the claim of any

of such parties to a right to possess the of the parties to a right to possess the

subject of dispute, peruse the statements, subject of dispute,peruse the statements

documents and affidavits, if any, so put in, so put in, hear the parties, receive all such

hear the parties and conclude the inquiry, evidence as may be produced by them,

as far as may be practicable, within a take such further evidence, if any, as he

period of two months from the date of the thinks necessary, and, if possible, decide

appearance of the parties before him and, whether any and which of the parties

if possible, decide the question whether was, at the date of the order made by him

any and which of the parties was at the under Sub-section (1), in possession of

date of the order before mentioned in such the subject of dispute:

possession of the said subject: Provided that if it appears to the Magistrate

Provided that the Magistrate may, if he that any party has been forcibly and

so thinks fit, summon and examine any wrongfully dispossessed within two months

person whose affidavit has been put in as next before the date on which the report

to the facts contained therein: of a police officer or other information

Provided further that, if it appears to was received by the Magistrate, or after

the Magistrate that any party has within that date and before the date of his order

two months next before the date of such under Sub-section (1), he may treat the

order been forcibly and wrongfully disprossessed party so dispossessed as if that party had

possessed, he may treat the party so been in possession on the date of his order

dispossessed as if he had been in possession under Sub-section (1).'

at such date:

Provided also that, if the Magistrate

considers the case one of emergency, he

may at any time attach the subject of dispute, pending his decision under this

section.'

10. It may mentioned that the reference to the affidavits in Sub-section (4) of Section 145 of the old Code, was also made by the self-same amendment Act 26 of 1955. A perusal of the two Sub-sections in juxtaposition would show that under Sub-section (4) of the new Code, the expression 'documents and affidavits, if any, so put in' occurring in Sub-section (4) of the old Code, have been deleted. On the other hand, in that Sub-section we have the expression 'receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary.' It would,therefore, appear reading both the provisions of Sub-sections (1) and (4) of Section 145 of the old Code in juxtaposition with Sub-sections (1) and (4) of Section 145 of the new Code, that the Legislature has deliberately done away with the amendment concerning the affidavits which was made by Section 18(a) and (b) of the Criminal Procedure Amendment Act 26 of 1955, thereby dispensing with the affidavits altogether and restoring the provisions to the position which existed prior to the amendment of the Code by Act 26 of 1955. Not only that but the Legislature has specifically provided in Sub-section (4) of Section 145 of the new Code that the Court shall receive all such evidence as may be produced by the parties and take such further evidence if any as it thinks necessary. When deliberate changes have been made by the Legislature, by the Legislature having deleted the amendments which were made by the amending Act 26 of 1955 while enacting the Code of Criminal Procedure, 1973, so as to do away with affidavits and there is a reference in Sub-section (4), only to the evidence, it would appear that it is no longer permissible for a Magistrate to decide proceedings under Section 145, on the basis of affidavits. Since that appears to be the clear intention of the Legislature, the procedure adopted by the Magistrate in disposing of the matter is not warranted by the amended Code of Criminal Procedure, 1973.

11. In this connection I may refer to the observations of the Law Commission. The Law Commission has observed as under:

The revised procedure (referring to the amendment made in 1955 to subsections (1) and (4) of Section 145 of the old Code by the amendment Act 26 of 1955) does not appear to have worked satisfactorily in practice. It is said that stereotyped affidavits prepared by lawyers on the same lines as the written statements are put in by both sides and these do not help the Magistrate very much in reaching a sound decision. Examination of witnesses under the first proviso cannot in most cases be avoided and consequently there is no saving of the Court's time. The main object of the amendment, which is to get inquiry completed rapidly, has not been achieved. On principle also, it is better that the Magistrate is required to decide the important fact of possession on the basis of oral evidence given before him and tested by cross-examination in the presence of parties. We therefore recommend that the procedure as it existed before 1955 should be restored.

12. It is evident that it is on the basis of this recommendation of the Law Commission that the changes which were made by the Amendment Act of 1955 in Sub-sections (1) and (4) of Section 145 of the old Code have been deleted and there are also consequent amendments in Sub-section (4), and it is therefore clear that it is no longer open to the Magistrate to dispose of proceedings under Section 145 of the Criminal Procedure Code, on the basis of affidavits. This very case is an illustration as, to how it is essential for a Magistrate to see the witnesses for himself inasmuch as in this case the Magistrate has observed without even seeing Flori's witness, Luis Lawrence that he is a disabled man and incapable 6f giving evidence.

13. In the result, although no grievance might have been made in the lower Court by Flori's advocate as is submitted by Mr. Valand, since the Magistrate has not followed the prescribed procedure and it was his duty to follow the prescribed procedure, the whole enquiry has been vitiated and, therefore, the order must be quashed and the proceedings must be sent back for disposal according to law in the light of this judgment. Rule absolute. Stay vacated.


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