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Desai Shivabhai Chhotabhai Vs. Ravjibhai Motibhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Ref. No. 54 of 1963
Judge
Reported inAIR1965Guj158; 1965CriLJ91; (1965)0GLR14
ActsCode of Criminal Procedure (CrPC) 1898 - Sections 145(4) and 435; Code of Criminal Procedure (CrPC) Amendment Act, 1955 - Sections 18(b)
AppellantDesai Shivabhai Chhotabhai
RespondentRavjibhai Motibhai and anr.
Appellant AdvocateB.R. Sompura Asst Govt. Pleader; C.C. Patel, Adv.
Respondent Advocate M.M. Patwel, Adv.
Cases ReferredMt. Sarfi v. Sugo
Excerpt:
criminal - reasoned judgment - sections 145 (4), 367, 435 and 438-a of criminal procedure code, 1898 - whether law requires that decision recorded by magistrate under section 145 (4) should or should not be supported by reasons - no express provision in section 145 (4) prescribes for recording reason - magistrate not required to give reasons under section 367 - held, decision cannot be stated to be illegal or incorrect on account of failure of magistrate to record reasons - reference rejected. - - on this application being made, the sub-divisional magistrate passed a preliminary order under section 145, sub-section (1) in which he recited that he was satisfied that a dispute likely to cause a breach of the peace existed concerning the lands of chaturbhai on the grounds mentioned in.....order1. this is a report submitted under section438-a, criminal procedure code, by the district magistrate, broach, recommending that the order dated 27th july 1963,passed by the sub divisional magistrate, rajpipla, in criminal case no.23 of 1963 should be set aside. the report raises an important of law, the question being whether the law requires that a decision recorded by magistrate under sub-section (4) of section 145,criminalprpcedure code, should or should not be supported by reasons, and, if it is required to be so supported of the absence of the absence of such reasons. before setting out the rival contentions of the parties, it will be convenient to set out briefly the facts which have led up to the report. one chaturbhai chhotabhai of the village umarva of nandod taluka,.....
Judgment:
ORDER

1. This is a report submitted under Section438-a, Criminal Procedure Code, by the District Magistrate, Broach, recommending that the order dated 27th July 1963,passed by the sub Divisional Magistrate, Rajpipla, in Criminal case No.23 of 1963 should be set aside. The report raises an important of law, the question being whether the law requires that a decision recorded by Magistrate under sub-section (4) of Section 145,CriminalPrpcedure Code, should or should not be supported by reasons, and, if it is required to be so supported of the absence of the absence of such reasons. Before setting out the rival contentions of the parties, it will be convenient to set out briefly the facts which have led up to the report. One Chaturbhai Chhotabhai of the village Umarva of Nandod Taluka, District Broach, died on 11th December 1962 leaving behind him lands situated at villages Umarva and Dhundha within the limits of Nandod Taluka. It is an admitted position that Chaturbhai did not leave behind him surviving any widow or children. Informant Shivabhai Chhotabhai is the natural brother of the deceased Chaturbhai. However, according to the opponents, who claim to be the cousins and legal heirs of Chhotabhai, Shivabhai was adopted in another family and that, therefore, he was not Chhotabhai's legal heir. Shivabhai resides in the village Surasamor, District Baroda. He made an application on 1st June 1963 to the Sub-Divisional Magistrate, Rajpipla, requesting that officer to attach the lands of Chhotabhai and to entrust them to a receiver alleging that there was a dispute between him and the opponents in relation to the possession of the lands, which dispute was likely to result in a breach of the peace. On this application being made, the Sub-Divisional Magistrate passed a preliminary order under Section 145, sub-section (1) in which he recited that he was satisfied that a dispute likely to cause a breach of the peace existed concerning the lands of Chaturbhai on the grounds mentioned in the information lodged by Shivabhai and called upon the parties concerned to put in written statements of their respective claims as regards the fact of actual possession of Chaturbhai's lands and further required them to put in such documents or to adduce evidence by putting affidavits of persons as they relied upon in support of their claims. The notice was made returnable on 27th June 1963, on that day, the opponent filed a written statement, documents and two affidavits. Informant Shivabhai did not file any written statement or affidavits on 8thJuly 1963 and the case was adjourned to 20th July 1963. On that day, the opponents filed two affidavits and informant Shivabhai filed his won affidavit and produced some documents, the case was then adjourned to 27th July 1963. The sub-Divisional Magistrate heard the parties on that day and then passed the impugned order. The order is drawn up in Form No. XXII prescribed by Schedule V of the Code of Criminal Procedure 1898. Amongst other things, the order states that the Magistrate decides that opponents were in possession of the land in dispute. I may say that the above order is not challenged on the ground that there was no formal decision recorded by the sub-Divisional Magistrate before the impugned order was drawn up. It is assumed that there was such a decision, informant Shivabhai was aggrieved by the aforesaid order and went in revision to the District Magistrate. The contention of Shivabhai which appealed to the District Magistrate was that the decision recorded by the Sub-Divisional Magistrate was bad in law in the absence of reasons of reaching of the decision. In arriving at this conclusion, the District Magistrate relied upon the case of Bansi v. Hari Singh reported of this case that the present report or reference has been made by the District Magistrate.

(2) Mr.Sompura, the learned Assistant Government Pleader, and Mr.C.C.Patel, who appears for informant Shivabhai, support the reference. Mr.M.M.Patel who appears for the original opponents oppose the reference.

(3) Before I set out the rival contentions of the parties, it will be convenient to summarize the provisions of Secs. 145 to 147 which are three out of four sections which occur in Chapter XII of the Code of Criminal Procedure, 1898. The Chapter is headed 'Disputes as to Immovable Property'. Section 145 enacts that where a Magistrate of the type mentioned therein is satisfied from a police report or other information that a dispute likely to cause a breach off the peace exists concerning any land or water situated within his jurisdiction, he shall make a preliminary order setting out the grounds why he was so satisfied and requiring the parties to attend his Court and to submit their statements, documents or to produce affidavits in support of their claims as regards the factum of actual possession of the subject-matter in dispute. Sub-section (2) of Section 145 defines expression 'land or water'. Sub-section (3) prescribes the procedure for service of notice. Then comes sub-section (4). This sub-section requires to be read in full as it is on the construction of this sub-section that ultimately the point of law raised in this reference falls to be decided. That sub-section (4) is as follows:

'The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any to put in, hear the parties and conclude the inquiry so far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of order before mentioned in such possession of the said subject:'

Then there are three provisos to the sub-section which it is not necessary to reproduce. The first proviso empowers the Magistrate to summon and examine any person whose affidavit ha been put in. the second proviso provides that if a party was forcibly and wrongfully dispossessed within two months next before the date of the preliminary order, shall he shall be deemed to be in possession on the date of the preliminary order. Sub-section (5) enacts that it is open to any of the parties to show that, in fact, there was no dispute of the kind mentioned in sub-section (1) and that, on the Magistrate being satisfied, shall cancel the preliminary order. Then comes sub-section (6) which may also read in full as it ha a material hearing the construction of sub-section (4). That sub-section reads follows:

'If the Magistrate decides that one of the parties or should under the second proviso to sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the second proviso sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed'.

From the aforesaid provisions, it is quite clear that section 145 enacts that after the preliminary order as aforesaid has been made, the Magistrate concerned shall proceed to decide the question a to which of the rival claimants was in actual and physical possession of the land under dispute either on the date of preliminary order or a date within two months before the date provided in the latter case of the Magistrate shall also further decide as to whether he party was forcibly and wrongfully dispossessed within the period aforesaid. The section also enacts that if the Magistrate finds that there was no such dispute as contemplated by the Section in existence, then he shall cancel the order. The Section further provides that if the Magistrate does come to the conclusion that one or the other of the rival claimants was in possession at the relevant time, then he shall draw up an order as provided for in sub-section (6). That order will declare that the party thereof until evicted therefrom in due course of law'. The section also requires that the order shall forbid 'all disturbance of such possession until such eviction'. The order also may restore a party forcbily and wrongfully dispossessed off land. Section146 deals with the same subject as Section 145, but provides the procedure to be followed incase the Magistrate come to the conclusion that none of the claimants was in possession if he is unable to decide as to which of the parties was in such possession. Section 146 provides that, in any one of the aforesaid two contingencies, the Magistrate shall draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court competent jurisdiction. That Court is enjoined to decide the same question which the Magistrate is enjoined to decide under Section 145. The Civil Court is enjoined to peruse the evidence already on record and is given power of recording further evidence as an may be adduced byte parties. It is further enjoined to consider the effect of all such evidence and after bearing the parties to decide the question a aforesaid. The Civil Court is further enjoined to transmit that finding to the Magistrate concerned and the latter is then enjoined to dispose of the proceeding with the decision of the Civil Court. Section147 deals with a dispute likely it cause a breach of the peace rights of user or any land or water. It directs that on the Magistrate concerned being satisfied of the existence of any such dispute, he shall make a preliminary order of the same kind which he is empowered to make under ection145. The relevant section is as follows:

'(1A) The Magistrate shall then peruse the statements so put in, the parties, receive all such evidence a may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and if, possible, decide whether such right exists and the provisions of Section 145 shall, as far as may be, applicable in the case of such inquiry'.

Then sub-section (2) provides if it appears to the Magistrate concerned that the right claimed exists, he may make an order prohibits any interference with the exercise of such right. Sub-section (3) provides right does not exist, he may ,make an order prohibiting any exercise of the alleged right. SUB-SECTION (4) specifically states that the order passed by the Magistrate will be subject to any subsequent decision of a Civil Court of competent jurisdiction.

(4) From the aforesaid summary of the three sections, it is quite clear there are the following stages in a proceeding started either under Section 145 or 147. They are (i) the stage when a preliminary order is made; (ii) the stage when the Magistrate receives statement, affidavits and documents; (iii) the stage when, in an enquiry under Section 145, the Magistrate peruses the statements, documents and affidavits, hears the parties and decides the questions which are set out in the three sections. There is some differences as regards the procedure to be adopted at this stage in an enquiry under Section 147 which need not be noticed at the present stage; (iv) the stage when the Magistrate concerned reaches a decision on the points in hand; (v) the stage when the Magistrate draws up a formal order when he is satisfied that one of the claimants is in possession or is or is not in enjoyment of the right in question; (vi) in the case of a land dispute if the Magistrate finds that none of the parties is in possession or that he is unable t decide which party is in possession , he is entitled to make a preference to a Civil Court.

(5) From the aforesaid summary, it is quite clear that, though a Magistrate is expressly required to state his grounds when making the preliminary order under sub-section (1) of Section 145, he is not required by sub-section (4), which enjoins on him to reach a decision as regards the factum of actual possession to give reasons for reaching his decision. This position is admitted by the learned Advocates on both sides. The contention of the supporters of the reference is that, though sub-section (4) of section 145 does not, in terms, enjoin the recording of any reasons for the decision, such a requirement is implicit in the language used in the section. The opponent of the reference, on the other hand, relies upon the distances between he requirements of a judgments and that of an order. He relies upon Section 367 of the Criminal procedure Code which, inter alia, provides what the contents of the judgment shall be. That section says that a judgment 'shall contain the point or points for determination, the decision thereon and the reason relies upon the fact that the aforesaid part of section 367 enacts in express terms that the decision recorded in a judgment shall be supported by persons. He relies upon the absence of any similar provision regarding an order. In addition to this, the opponent of the reference of the reference further contends that if the language of sub-section (4) if contrasted with the language of sub-section (1) of Section 145, it is quite clear that whereas he Legislature expressly enjoins that the preliminary order shall be supported by reasons, the Legislature has been deliberately silent as regards the decision which is to be reached under sub-section (4). The proponents of the reference contend that even if there be substance in the aforesaid contentions of the opponent of the reference, in any case, this Court must hold on the basis of the fact that a decision under sub-section (4) aforesaid is amenable to the revisional jurisdiction of the High Court, that the Legislature intended that the decision must be supported by reason otherwise the revisional Court will not be bale to perform the duty cast upon it by section 438-A under which the reference is made.

(6) The contention which have been raised by the rival parties are the very same contentions which were raised, considered and decided by their Lordships of the Allahabad High Court in the case, (S) AIR 1956 All 297, already referred to, and on the basis of which the present reference is made. It is a decision of a Division Court. The principal judgment was delivered by James, J. That judgment shows that there is a conflict of judicial authority on the aforesaid subject in hand and that the weight of the judicial authority is in favour of the proposition that a decision under sub-section (4) of Section 145 must be supported by reasons.

(7) Before I discuss the various submissions made on the aforesaid subject, it will be useful to mention briefly the main object intended to be achieved by the aforesaid three sections in Chapter XII. There is no doubt whatsoever that the object which the Legislature intends to secure by enacting those provisions is to preserve and maintain law and order and to prevent a disturbance of the public peace. It is true that the provisions can be brought into play only when peace is threatened on account of the existence of a land dispute. But the existence of a land dispute, though relevant, by itself does not justify the invocation of the powers conferred upon the Magistrate concerned under those sections. This is quite clear from a number of provisions contained in the Chapter. Firstly, if an order is to be made under either Section 145 or section 147, the condition precedent is that there must be a likelihood of a breach of the peace being committed. It is on the satisfaction of this vital ingredient that a preliminary order under Section 145 or section 147 is to be made. That this is a vital point is also made clear in Section 145 wherein it is stated that the Magistrate shall cancel the order if it is shown to him that there was no dispute in existence which was likely to create a breach of the peace. The final order which is passed under sub-section (6) of Section 145 or under sub-sections (2) and (3) of Section 147 is designed to prohibit one of the parties from taking the law into its own hands and from committing the breach of the peace. It is true that, before making the final order, the Magistrate has been enjoined to determine as to which party is in actual possession of the property in dispute or as to whether the right of the type mentioned in Section 147 claimed by one or the other party has been established. However, the Magistrate is not excepted at least in the case of a land dispute to enter into the merits of the right claimed in respect of the land in dispute. The Magistrate is expressly prohibited by sub-section (4) of S. 145 from referring to the merits of the claims of any of the parties to a right to possess the subject-matter in dispute. The fact which the Magistrate is called upon to decide is the simple fact of actual and physical possession of the land. Similarly, the points which he is required to decide under S.147 are simple regarding the user of land or water. That the Magistrate is not supposed to enter into an elaborate discussion of the ultimate rights involved is also quite clear from the direction given to him under sub-section (4) that he shall decide the factum of actual possession within a period of two months from the date of the appearance of the parties. The Magistrate is not bound to record a finding on the subject of actual possession at any cost. He is directed only to make the best effort that he could to do so and it, in a land dispute, he is unable to reach a decision, he is directed to refer that point for determination to a Civil Court and the latter, in its turn, is directed to conclude the enquiry within three months from the date of the appearance of the parties before it. All these provisions are designed with a view to obtain a quick and speedy decision on the subjects of actual possession or user of rights. The decision of the questions of fact recorded by the Magistrate or by the Civil Court is not a final decision. It is subject to the ultimate decision which may be recorded by a Court of competent jurisdiction. The sections have been designed to prevent a breach of the peace during the pendency of the dispute and to secure that, after in order to passed by the Magistrate, the aggrieved party shall have recourse to the due course of law in enforcement of the right which be claims over the land or the right to the user thereof. It is in the light of the aforesaid object which the Legislature has in view that the question has got to be considered whether a Magistrate is or is not expected to give reasons in support of decision.

(8) Turning now to sub-section (4) of S.145, what the proponents of the references emphasise is the use of the word 'decide' in that section. It is contended that the duty reasons is implicit in the use of this word specially when the word is used in the context of a quasi-judicial enquiry, in the concurrent judgment delivered in Bansi's case, (S) AIR 1956 All 297 aforesaid by Mukherji, J. this aspect of the case been specially emphasised. The argument is that it is incomprehensible that a judicial or quasi-judicial decision could be given without supporting it by reasons. I am unable to agree with this general proposition. In the first instance, if this were so, then, it is hardly probable that, in section 367, Criminal Procedure Code, 1898, the Legislature would have been enjoined that the decision embodied in a judgment should be supported by reasons. The use of the word 'decide' or 'decision' in that section would have been enough. In the second instance, it is hardly probable that the Legislature would have expressly directed that the grounds for the satisfaction that a dispute was in existence should be given by the Magistrate when making the preliminary order and the same should have been found to be absent in sub-section (4). In any case, in which decisions recorded by judicial situations in which decisions recorded by judicial officers are not supported by reasons. For example, when an appellate Court dismisses an appeal summarily, it is well known that it does not ordinarily give reasons in support of the same. In the case of summary suits also, it is well known that no reasons are given, in the case of the City Civil Court and the High Court exercising jurisdictions on the original and appellate side, usually no reasons are given in support of interim orders. in the decisions of Small Causes Courts also, the law does not except any reasons to be given by that Court. Having regard to this state of law, in my judgment, it cannot be inferred merely from the user of the word 'decide' in sub-section (4) aforesaid that the Legislature necessarily implied that reasons should be adduced in support of the decision. In a Patna case, Mt. Sarfi v. Sugo, reported in AIR 1962 Pat 253, the conclusion that reasons must be given was deduced from the use of the word 'peruse' in sub-section (4). It is stated therein that that. must result in a duty to give reasons. With great respect, I am unable to agree with the conclusion that this necessarily follows from the use of the word 'peruse'. In Bansi's case, (S) AIR 1956 All 297 the aforesaid conclusion has been arrived at also on the ground of the user of the expression 'consider the effect of the evidence' in sub-section (4) as it then stood when the decision was given. However, the present sub-section (4) has been substituted by Section 18(b) of the Amending Act 26 of 1956 for the original sub-section (4). Under the old law, the parties were allowed to adduce further evidence, the Magistrate was given the power of examining himself and was required to consider the effects of he evidence adduced before him. Under the substituted sub-section (4), the parties are not entitled to adduce oral evidence except byway of affidavits. The Magistrate is not entitled to examine evidence except that he has been given the power of summoning and examining the person who was already made an affidavit and the words 'consider the effect of the evidence ' have been omitted. It is significant that, though this is so, that expression has been retained in Section 146 in that part of the section which directs the Civil Court to decide the same question and, in the case of a dispute under Section 147, the same expression has been retained. therefore, whether may be the inference which may be drawn from the aforesaid expression 'consider the effect of the evidence' in relation to the duties imposed upon the Civil Court and the Magistrate exercising power under S.147. It is quite clear that aforesaid expression cannot now be relied upon in support of he argument that a Magistrate exercising duty under sub-section (4) of Section 145 shall support his decision by reasons. Even if one were to proceed on the basis that the decision of the aforesaid expression is not intended to give liberty to the Magistrate concerned to decide without considering the effect of all materials before him and that, inspite of the change in the language of sub-section (4), the Magistrate is still enjoined to consider the effect of the materials before him, in my judgment, it is difficult to agree that, by the use of the aforesaid expression, the l 2 intended that the decision should be supported by reasons. When a person is told that to take into consideration the effect of evidence, it cannot be said that the person is asked to give reasons. All that is implied is that the person shall undergo the process of considering the evidence and shall determine the effect of that evidence before giving his decision.

(9) James, J., in Bansi's case, (S) AIR 1956 All, 297 has made a reference to the various steps which the Magistrate is required to take before reaching his decision. The learned Judge has described these steps as an elaborate procedure and on the basis thereof that '.... it does not appeal to one's reason or commonsense that no reason on his (Magistrate's) part are necessary or that through a purely mental act he can 'decide' as to which of the parties was in possession or that none was in possession or that possession was indeterminate'. I am unable to agree with the conclusion that any such inference necessarily follows from the procedure prescribed by Section 145 or 146. On the contrary in any judgment, if the aforesaid argument to be adopted as a good reason, then one would be rendering decisions ion a large number of legal proceedings, some of which I have mentioned above, as being unreasonable or opposed to common sense.

(10) The principal question which was raised in Bansi's case was whether the decision of a Magistrate under sub-section (40 aforesaid, which does not give any reasons, can or cannot upheld because the learned Magistrate had drawn up the order Form XXII of Schedule V of the Code of Criminal Procedure, 1898. I am in agreement with the views expressed in Bansi's case, (S) AIR 1956 All 97 that is not so. This would not so because the two things, viz, a decision under sub-section (4) and an order aforesaid, are two different things. The decision recorded under sub-section (4) is a decision relating to the actual and physical possession of the land in dispute. That representation the determination of the Magistrate on that subject and the order drawn up in Form XXII Schedule V is the final order which is required to be drawn up not necessarily to embody the decision but to embody the directions of the Magistrate to the parties concerned. Whereas the decision under sub-section (4) only decides the question of actual physical possession, the order under sub-section (6) confers on the party concerned to retain or obtain possession and forbids the opposite party from the possession without taking steps in due course of law. But the conclusion that the decision and the order two different things can hardly made for holding that the decision must be supported by reasons.

(11) In my judgment, no positive conclusion can be arrived at on the aforesaid subject an any of the grounds so far noticed by me. As against this, in my judgment there are a number of reasons, some of which I have already mentioned. Which indicate that probably the l 2 did not intend t burden the function of the Magistrate but calling upon to give reasons in support of his decision. In the first instance, having regard to the fact there is an express provision in sub-section (1) for giving for making the preliminary order that there is no such express provision in sub-section (4) for recording the decision, the maxim 'expression unius est exclusio alterius' can be in the construction of sub-section (4). Moreover, there is no doubt whatsoever that the decision recorded under sub-section (4) is neither a judgment within the meaning of S. 367, Criminal Procedure Code, nor is it deemed to be a judgment under that section as sub-section (6) of section 367 does not apply which sub-section enacts that only orders under Section 118 or section 123, sub-section (3) shall be a judgment. Therefore, there is no doubt that, in recording the aforesaid decision, the Magistrate is not required under section 367 to give his reasons. The proceeding before the Magistrate is of a summary nature. He is expected to record his decisions as early and as speedily as possible. The points which are required to be decided are simple points of facts. He is enjoined to record his decision without reference to the merits of the rights involved in the dispute. The decision which he records is not final. The decision can be challenged and got set aside in proper proceedings before a Civil Court of competent jurisdiction. In the case of a land dispute, he is expected to record any oral evidence except that, in his discretion, he may summon and examine a person whose affidavit is already on record. Having regard to these features of the enquiry which he is required to make, the l 2 appears to have deliberately omitted to require him to give reasons in support of the decision arrived at by him. The purpose of the State would be served if the Magistrate makes an order which would prevent one of the parties from disturbing the peace and committing a breach thereof.

(12) However, the proponents of the references urge one more ground in support thereof and that is a ground which appears to have appealed quite a large body of judicial opinion including James, J., and appears to be the principal ground on which Mukerji, J. has concurred with the conclusions arrived at by James, J. The ground is that the order drawn up by the Magistrate is amenable to the revisional jurisidiction of the High Court exercisable under Section 435,Criminal Procedure Code. In the State of Gujarat, the power would be exercisable by the High Court under section 438-A of that Code. The argument is that the l 2 must be presumed to have intended the Magistrate to give his reasons because the High Court will not be able t perform the functions assigned to it for revising the order of the Magistrate. In the first instance, it is not correct to say so far as the State of Gujarat is concerned that the decision of the Magistrate is liable to be revised by itself. Section 438-A makes the order under section 145 revisable by the High Court, therefore, operates on the order made under sub-section (6) of Section 145 and not upon the decision recorded under sub-section (4) of that section. However, under Section 435, a finding is also revisable by the High Court. But, I do not propose to lay much emphasis upon this distinction. It may be that when the High Court is called upon to revise an order record under sub-section (6) of section 145, it is also called upon to consider the correctness, legality and propriety of the decision recorded under that because the decision is so revisable, a duty must be implied therefrom on the authority recording the decision to gave his reasons does not appeal to me. The revisional powers of the High Court, in my judgment, have no relevance to the question as to what the subordinate magistracy has to do. I had no warrant for the proposition that because an order is revisable by a higher court that, therefore, the subordinate authority must record his reasons. Almost all the judicial orders in which no reasons are given and which I have enumerated above are also subject to the revisional jurisdiction of the High Court. Nay, a further appeal lies to a higher court in some of these matters. If the aforesaid argument were valid, then, all those decisions also would be bad on the ground that they are not supported by reasons. Therefore, this argument also does not appeal to me.

(13) For the aforesaid reasons, I have come to the conclusion that it cannot be stated as a matter of law that a decision recorded by a Magistrate under sub-section (4) of Section 145 must be held contrary to law because it is not supported by reasons. In my judgment, such a decision cannot be stated to be either illegal or in correcton account of the failure of the Magistrate to record reasons and the same cannot be revised for that particular reason proprto vigore.

(14) However, that does not mean that the absence of any record of reasons cannot have any repercussions when the same is challenged in a revisional Court. When an order is brought before a revisional Court and that Court is called upon to decide whether the order is proper or correct or not, though, as I have already stated, the order may not be set aside on the ground of illegality the revisional Court is bound to consider the question of the propriety or correctness of the order on well recognised principles. Whilst discharging this duty, if the revisional Court finds that, on a perusal of the materials on record, the failure of the Magistrate to record to record his reasons impinges upon the propriety or correctness of the decision, then, the revisional Court may on that account come to the conclusion that the decision in a given case is improper or incorrect and may set it aside on that account. But, that will not be done on the ground that the decision is illegal, but it will be done on the merits of each case.

(15) Under the circumstances, before disposing off the reference, it is necessary for me to consider the propriety or the correctness of the decision recorded by the Magistrate. In my judgment, the order passed by the Magistrate is eminently reasonable and cannot be regarded as either incorrect or improper. The simple question which the Magistrate was called upon to decide was as to who was in possession of the estate of Chaturbhai Chhotabhai. In deciding this question, the Magistrate was prohibited from taking into account the rights which each of the parties put forward in support of its case. Therefore, the allegation of the original opponents that the informant Shivabhai, though the natural brother of Chaturbhai, was adopted in another family should necessarily be left out of account. But, at the same time, there is no doubt whatsoever that the original opponents did file affidavits to show that, on the death of Chaturbhai, they reaped the crops which Chaturbhai had raised on his estate. The original opponents have supported that allegation by producing the affidavits of a number of people. Though informant Shivabhai has denied that the original opponents were in possession on the date on which the order was made, he has failed to deny the aforesaid allegations supported by the affidavits that the original opponents had reaped the crops raised by Chaturbhai on his estate. In addition to this, there is documentary evidence in the case to show that the names of the original opponents were as recorded in the revenue record and they have paid the land revenue in respect of the estate of Chaturbhai. Having regard to the facts, in my judgment, the decision recorded by the Magistrate that the original opponents were in actual and physical possession of the property at the date of the preliminary order cannot be regarded as either incorrect or improper. Under the circumstances, in my judgment, the Magistrate was justified in making the order that he did in favour of the original opponents under sub-section (6) of Section 145, Criminal Procedure Code.

For the aforesaid reasons, in my judgment, the reference deserves to be rejected. Reference rejected.

(17) AH/V.B.B.

(18) Reference rejected.


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