R.K. Das, J.
1 to 5. (After narrating the facts his Lordship proceeded) - Mr. Sahu appearing on behalf of the complainant-appellant, however, contended before me that a local inspection having already been directed by the predecessor of the learned trying Magistrate, he is incompetent and has no jurisdiction to revise the order of his predecessor and he was bound under the law to make the local inspection whether the parties pressed for it or not. It would appear from the order-sheet D/- 15-2-1960 that the complainant filed an application for a local inspection and ultimately by an order dated 29-2-1960 Sri M. M. Mohanty, the then learned trying Magistrate, directed local inspection to be held on 20-3-1960, and it was also further ordered that the arguments would be taken upon 23-3-60 after the local inspection is made.
Fran the order-sheet dated 23-3-60 passed by Sri M. M. Mohanty it appears that the lawyers of both parties did not accompany him on 20-3-60 for local inspection. So he refixed the date for local inspection to 10-4-1960 as they were not agreeable to go earlier. He fixed argument to 12-4-1960. From the order sheet dated 12-4-1960 it appears that the local inspection was agreed to be made by lawyers of both parties on 24-4-1960 and 26-4-1960 was fixed for argument. From the order-sheet dated 26-4-1960 it appears that the next date was fixed for 15-5-1960 for argument after local inquiry. In the meanwhile before 13-5-1960 the case was withdrawn from the file of Sri M. M. Mohanty and was transferred to the file of Sri H. H. Misra, Magistrate 2nd Class. The said learned Magistrate on 13-5-1960 passed an order to the effect that local inspection was not pressed and the case was posted to 26-5-1960 for argument. On 26-5-1960 the order-sheet shows as follows:
Parties present. Both lawyers verbally state that they are not ready today to argument. Case posted to to-morrow for argument. Accused as before.
On 27-5-1960 argument was heard and 4-6-1960 was fixed for judgment. The judgment was not ready on 4-6-60 and the case was adjourned to 7-6-1960. As the judgment was not ready on 7-6-1960 it was adjourned to 15-6-1960 when the judgment was pronounced and the accused were acquitted. The order-sheet dated 15-6-1960 shows:
Parties present. Judgment partly written in open court and pronounced in open court. Accused acquitted under Section 245 Cr. P.C.
The learned Magistrate's explanation is that so far as the local inspection is concerned, it was not pressed. As is well known, if the parties do not press for local inspection then eventually it may not be necessary for the Court to make a local inspection. No doubt the Court can suo motu take a move to make local inspection for the better appreciation of evidence but if the parties are not serious about it and do not very much press for the local inspection to be made, the Court probably has no other way than to abandon it. In this case it appears, the complainant wanted a local inspection and the Court did not of its own accord want a local inspection for proper appreciation of the evidence. Moreover, one Magistrate may feel inclined to make a local inspection for better appreciation of evidence and another Magistrate may not think it as necessary. It is, therefore, for the particular Court which tries the case to decide whether any local inspection is necessary or not. But if the parties want such a local inspection to be made, it is their duty to move the Court, It cannot be accepted as a proposition of law that just because his predecessor directed a local inspection the succeeding Magistrate is bound to do that whether he wants it or not and whether the parties press for it or not.
6. Further it would appear from the ordersheet on 13-5-1960 that the case was posted to 26-5-1960 for argument. On 26-5-1960 the lawyers for both parties requested the court not to take up the argument as they were not ready. If the party or parties felt aggrieved by the order of the Magistrate dated 13-5-1960, he or they could have moved the Court for local inspection to be made in furtherance of the previous order. But this has not been done in this case. On the other hand, the lawyers proceeded to argue the case without insisting upon any local inspection to be made. Therefore, it is clear from the order-sheet as well as from the conduct of the parties that local inquiry was not pressed and moreover it was not thought fit by the Magistrate also to have a local inspection. So 'he proceeded to hear the case and pronounced judgment in usual course.
If, as a matter of fact, any such fresh application would have been made on or after 13-5-1960 requesting the Court to make local inspection in view of the previous order of the Court, then the position would have been different. If the Magistrate would have still refused to make a local inspection, it would have been open to the parties to come in a revision against that order. It is well Known that a Magistrate should very sparingly go for local inspection to prevent himself from becoming a witness unconsciously. There is, therefore, not much force in the contention of the learned Advocate for the appellant.
(The rest of the judgment is not material for the purpose of this report.)