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Batakrushna Naik Vs. Khageswar Kunda and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in39(1973)CLT152; 1973CriLJ1050
AppellantBatakrushna Naik
RespondentKhageswar Kunda and ors.
Cases ReferredSk. Mahammad Yasin v. State).
Excerpt:
.....from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - i do not endorse the view as such because it seems to be too well settled in this court as also in series of decisions of other courts that local inspection is permitted within its own limitations and where it is done for the purposes of appreciating the evidence already on record, objection is not taken......own order, he spoke to witnesses and witnesses also gave details of disputes before him. certainly local inspection is not meant to be used for such purpose. mr. dhal seeks to rely upon a decision of das, j.,in this court in the case of daitari patnaik v. hadibandhu singh, 1972 (2) cut wr 1309, wherein it has been observed that the magistrates are not entitled to make local inspection. i do not endorse the view as such because it seems to be too well settled in this court as also in series of decisions of other courts that local inspection is permitted within its own limitations and where it is done for the purposes of appreciating the evidence already on record, objection is not taken. the decision of das, j., therefore, would run counter to the law established in this court and it is.....
Judgment:
ORDER

R.N. Misra, J.

1. The second member of the second party is the petitioner. He assails the final order in the proceeding under Section 145 of the Code of Criminal Procedure terminating against him.

2. Two questions were raised by Mr. Dhal for the petitioner. Firstly, it is contended that a proceeding was initiated under Section 144, Criminal Procedure Code by order dated 17-4-1970 at the instance of the first party who has succeeded. Therein while dispossession was admitted, the date of dispossession was not indicated. The proceeding was converted to one under Section 145 of the Code of Criminal Procedure by order dated 13-5-1970. It is contended, therefore, that dispossession being more than two months prior to the preliminary order in the proceeding under Sub-section (4) of Section 145, Criminal Procedure Code, the learned Magistrate was obliged to find possession of the second party-petitioner.

3. Mr. Sinha does not agree that there has been admission of dispossession. It is not necessary to determine that dispute because in law the contention of Mr. Dhal cannot be supported. Admittedly on 17-4-1970, the matter carne before the court and an order under Section 144, Criminal Procedure Code was made. When the proceeding was converted into one under Section 145, Criminal Procedure Code, and a preliminary order as required under the law was made, the date with reference to which possession has to be determined will be the date when the order under Section 144, Criminal Procedure Code was made. For all material purposes the date of the preliminary order shall be taken to be the date when the prohibitory order was made under Section 144, Criminal Procedure Code. The alleged dispossession being less than two months from that date the point loses force.

4. The next contention is that the learned Magistrate who disposed of the proceeding visited the spot and as is indicated in his own order, he spoke to witnesses and witnesses also gave details of disputes before him. Certainly local inspection is not meant to be used for such purpose. Mr. Dhal seeks to rely upon a decision of Das, J.,in this Court in the case of Daitari Patnaik v. Hadibandhu Singh, 1972 (2) Cut WR 1309, wherein it has been observed that the Magistrates are not entitled to make local inspection. I do not endorse the view as such because it seems to be too well settled in this Court as also in series of decisions of other Courts that local inspection is permitted within its own limitations and where it is done for the purposes of appreciating the evidence already on record, objection is not taken. The decision of Das, J., therefore, would run counter to the law established in this Court and it is unnecessary to indicate further about the said decision. I am not inclined to refer this revision application to a larger bench for disposal because in the present case I am also not supporting a local inspection and its results. Even if the learned Magistrate was entitled to visit the spot, he was not entitled to make enquiries, gather evidence by talking to witnesses present at the spot, form an impression about the merit of the dispute and dispose of the dispute keeping these in view. Local inspection has its own limitations and if conducted within those limitations may not be objected to. It has often been said that when making local inspection the Magistrate should avoid making enquiries from the people on the spot as to trie truth of the matter in dispute. (See AIR 3929 Lah 120, Udho Ram v. Emperor AIR 1926 Bom 245, Mangru Feku, In re AIR 1959 Manipur 38, Nijamuddin v. Abdulhei). In AIR 1964 Mys 177, (Appayya Naika v. State of Mysore), where determination of the question of actual possession was largely influenced by extra-judicial information collected and observation made during local inspection was held to be vitiated. As was rightly indicated in a Nagpur decision 39 Cri LJ 92 : AIR 1937 Nag 274, Deljit Singh v. Emperor, a Magistrate is entitled only to embody in his inspection note the facts observed by him on the spot and not the result of statements made to him there.

Here is an ' instance where the learned Magistrate has over-stepped the limit and made use of his local inspection in such a manner that he has himself become more or less a witness and has ceased to be the arbiter of the dispute. If a Magistrate imports into the case any facts which he has himself observed, he would be introducing into the case evidence which has not been subjected to the test of cross-examination and in regard to which he may have been misled by his senses or have been biassed in favour of either party : 1956CriLJ805 , Pritam Singh v. State of Punjab, (1964) 30 Cut LT 43, Sk. Mahammad Yasin v. State).

The final order of his, therefore, cannot be sustained. Mr. Sinha contended that even if the report is kept away, there would be enough materials to support the finding. That certainly the learned magistrate will consider by throwing out the local inspection in toto. This case shall be heard by another magistrate as I am not in a position to rule out Mr. Dhal's apprehension that the impression of local inspection may not be lost even when the Magistrate again disposes of the case. The revision is allowed.


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