Krishna Rao, J.
1. This is a petition under Sections 435 and 439 Criminal Procedure Code for revision of an order made by the First Class Magistrate, Gudur under Section 145(6), Criminal Procedure Code declaring that the 2nd respondent is entitled to be in possession of the disputed land until evicted therefrom in due course of law and forbidding all disturbance of such possession by the petitioners until such eviction. The main ground taken in support of the revision is that the Magistrate's finding Under Section 145(4) in favour of the 2nd respondent is based on a one-sided review of the evidence and that the Magistrate has not perused at all or taken into con- sideration the affidavits put in on behalf of the petitioners. It is therefore urged that the order is grossly unjust and that the matter ought to be remanded for a proper disposal.
2. The dispute relates to about 20 acres of wet land in Survey Nos. 32 to 38 of the village of Punjulurupadu shortriam. The eleven petitioners are ryots of the village and the 2nd respondent is one of the co-sharers of the rights of the shortri-umdar. The case of the petitioners is that they reclaimed the disputed lands prior to 1938, that the lands form a portion of the extent of 58 acres in old Survey No. 1/1 which were given to the ryots under the compromise decree (Ex. B. 1) dated 13-3-1942 passed in O. S. No. 377/1938 on the file of the District Munsif's Court Nellore between the shortruimdars and the ryots and that they have been separately cultivating and enjoying extents of two acres each out of the disputed lands throughout.
The 2nd respondent's case is that the disputed lands are his family property, that he and his predecessors have been in enjoyment of them for a very long time and that the aforesaid compromise was never acted upon. The dispute over the possession of the lands seems to have become acute In July 1956. On 25-10-1956, the 2nd respondent applied to the Taluk Magistrate of Nellore in C.M.P. No. 5 of 1956 for an order under Section 144. Criminal Procedure Code against the petitioners' party. After this was refused by the Taluk Magistrate, the 2nd respondent made a similar application on 23-11-1956 to the Joint Magistrate of Cudur in C.M.P. No. 6 of 1956. Ultimately, the Joint Magistrate made the preliminary order under Section 145 on 20-12-1956 and the case was transferred to the lower court,
3. A perusal of the lower court's order shows that the petitioners' complaint against it is well founded. With regard to their right to possession of the disputed lands, the petitioners placed reliance on the compromise decree dated 13-3-1942 passed in O. S. No. 377 of 1938 (Ex. B. 1) and one of the three rajinamas numbered at I. A. 131/41 (Ex. B. 2) incorporated therein. With regard to the fact of their actual possession, they relied mainly on a number of kist receipts (Exs. B. 11 to B. 30) and affidavits (Exs. B. 3 to B. 7, B. 31 to B. 48). The learned Magistrate rightly observed before discussing the evidence that he was concerned with the fact of actual possession and not with the right to possession of the parties. Dealing with the evidence, he regarded Ex. B. 1 as the 'trump-card' of the petitioners.
He held on a construction of Ex. B. 1 and from the absence of any other title deeds on the side of the petitioners that the compromise was not acted upon. He also found that the cloud cast by Ex. B. 1 on the 2nd respondent's title was removed by Ex. A. 6. He held further that Exs. A. 7 to A. 11, A. 13 and A- 51 together with the affidavits put in by the 2nd respondent, of the karnam, of neighbouring land-owners and of the labourers connected with Ex. A. 13 proved the 2nd respondent's continuous possession and enjoyment of the disputed lands. But as regards the evidence besides Ess. B. 1 and B. 2 put in by the petitioners, his specific comments were confined only to the kist receipts.
He declined to attach much weight to them because the genuineness of such of them as were granted by the 2nd respondent himself was challenged and some of them were granted by the vil-lage munsif who was inimically disposed towards 2nd respondent and the possession disclosed by them was not continuous. His only comment on the affidavit put in by the petitioners was 'they have also filed a number of affidavits including that of one M.L.A.' This is certainly far from indica-tive that he perused the affidavits, most of which asserted acts of possession by the petitioners like raising and harvesting crops besides paying kist and some of which explain the circumstances in which the compromise in O. S. 377/38 was effected.
The learned Magistrate's summing up of the evidence of both parties in paragraph 19 of his order makes it clear that he was not aware of the contents of the affidavits put in by the petitioners. For, he said 'the contentions of the B party (Petitioners) are isolated phrases in Ex. B. 1 which refers to the possession of the ryots and the non-continuous and disjointed kist receipts for earlier faslis'. In these circumstances, there is considerable force in the submission of the learned counsel on behalf of the petitioners that the affidavits which constitute the material evidence on their side were completely ignored or not taken into consideration.
4. The learned Public Prosecutor, who represented the 1st respondent State of Andhra Pra-desh, conceded that if the affidavits and documents put in by either party were completely ignored, the case should be sent back for fresh disposal. The learned counsel for the 2nd respondent, however, took up the position that the High Court ought not to interfere in revision, because a Magistrate's proceedings under Section 145. Criminal Procedure Code, are of a summary character and the aggrieved party can effectively and finally seek redress in a civil court.
There can be no question that the High Court has jurisdiction to interfere in revision in respect of orders under Section 145 Cr. P. C. It is unnecessary to refer to the earlier case law cited at the bar on this point in view of the recent pronouncement of the Supreme Court in Ramgopal Ganpatrai v. State of Bombay, : 1958CriLJ244 . Construing Sections 435 and 439 of the Criminal Procedure Code, their Lordships held that the High Court may examine the correctness, legality or propriety of any order passed by an inferior criminal court and if it finds that the order is not correct or illegal or improper, It may exercise any of the powers conferred on a Court of Appeal by Section 423, Criminal Procedure Code.
As regards these powers, reference may be made to Clauses (c) and (d) of Section 423(1), which empower a Court of Appeal to alter or reverse any order appealed against and make any amendment or any consequential or incidental order that may be just or proper. It may also be noted that whereas Section 146(ID) bars any appeal, review or revision of the finding of a Civil Court to which the question of possession is referred for decision in such disputes, there is no similar prohibition in the case of a Magistrate's own finding under Section 145(4) Criminal Procedure Code. It is clear that the revisional jurisdiction in respect of orders under Sub-sections (4) and (5) of Section 145, Cr. P. C. is the same as in respect of other orders and of proceedings of inferior criminal courts.
5. The only question is whether a case is made out for the exercise of the High Court's powers of revision. No doubt under the terms of Section 439 Cr. P. C. the exercise of the powers is discretionary and is therefore subject to all the limitations on the exercise of a judicial discretion. Further, the provisions of Section 440 Cr. P. C., making it optional to hear any party subject to Section 439(2), indicate that the impugned order must be ex facie incorrect, illegal or improper.
Under Section 537 Cr. P. C. it is only if any error or omission or irregularity in the proceedings has in fact occasioned a failure of justice that a finding sentence or order passed by a court of competent jurisdiction may be interfered with in appeal or revision. The learned counsel for the 2nd respondent contended that there is no ex facie defect in the lower court's order, that the learned Magistrate must be taken to have rejected the affidavits put in by the petitioners as being of no weight in the face of the documentary evidence and that his finding based on the documentary evidence accords with the justice of the case.
6. It was urged that the Magistrate had no duty of discussing the affidavits put in by the parties, because under the amended Section 145, Criminal Procedure Code, the proceedings are manifestly of 3 summary character. The learned District Judge to whom the petitioners applied in revision in the first instance, relied in this connection on a judgment recently delivered by my learned brother, Kumarayya J. in Criminal Revn. Case No. 303 of 1957. That was a case in which it was held that the Magistrate had in fact complied with all the requirements of Section 145(4) Criminal P. C.
The Magistrate bad specially observed that he was unable to give much weight to the affidavits filed on behalf of the petitioners there. In those circumstances, Kumarayya J. said 'it is evident from the order that the learned Magistrate has perused the documents and affidavits, heard the parties and also has given reasons for his conclusion''. That decision can be of no assistance to the 2nd respondent here, because the learned. Magistrate has not expressed any opinion at all with regard to the affidavits put in by the petitioners
The words 'peruse' means 'to go through critically; to read thoroughly or carefully' (The Oxford English Dictionary). Under the summary procedure prescribed by the amended Section 145, Criminal Procedure Code, affidavits take the place of oral evidence and the Magistrate is required to 'peruse the statements, documents and affidavits if any' put in by the parties. Obviously, the order must ex facie show that he has gone through all the affidavits with some care and appraised the weight to be given to them. In the present case, it cannot be said that the Magistrate has so perused the affidavits put in by the petitioners before making his order. In other words, he has not complied with the mandatory requirements of Section 145(4) Criminal Procedure Code and it follows that ex facie the order must be held to be improper.
7. The next question is whether the defect has occasioned the failure of justice. The learned counsel for the petitioners relies on Exs. B. 3 to B. 6, the affidavits of the two mediators and two more persons connected with the compromise in O. S. 377 of 1938 proving that the compromise was acted upon. He refutes Ex. A. 6 on the foot of the statement filed by its executant Epuri Balarami Reddi before the Taluk Magistrate in C.M.P. No. 5 of 1956. With regard to Ex. A. 7, the learned counsel for the 2nd respondent himself admits that the learned Magistrate has misconstrued it, because the Estates Abolition Tribunal left open the ques- tion whether the 2nd respondent was entitled to both melwaram and kudiwaram rights.
As to Exs. A. 8 to A. 10, the learned counsel for the petitioners says they are of little evidentiary value on the ground that they are not ante lite motam and the karnam is stated in their affidavits to be closely related to the 2nd respondent. The affidavit, Ex. A. 14, of the karnam, put in by the 2nd respondent, is attacked as being inconsistent with the earlier affidavits Exs. B. 7 and B. 8 put in by the petitioners. The other documents upon which the learned Magistrate based his finding in favour of the 2nd respondent are also assailed in the several grounds of the revision petition on the foot of the affidavits put in by the petitioners.
The learned counsel for the 2nd respondent points out that besides the affidavits connected with Ex. A. 13, he has filed a large number of affidavits for proving the 2nd respondent's possession which have not been mentioned by the learned Magistrate. But the vital defect is that the Magistrate did not say that he disbelieves or attaches no weight to the affidavits put in by the petitioners. There is a one sided emphasis on only the evidence put in by the respondent.
The learned counsel for the petitioners points Out that even the Circle Inspector, whose report was in favour of the 2nd respondent, admitted during his cross-examination before the Joint Magistrate that some of the petitioners were in possession. As the order of the learned Magistrate shows that he failed to take into consideration large portions of the material evidence, the natural inference must be that there has been a miscarriage of justice.
8. The order of the learned Magistrate is therefore set aside and the matter is remanded to the lower court for fresh disposal. Further evidence on the question of possession will not be allowed. The case will be dealt with by a Magistrate other than the Magistrate who passed the order under revision.