C. Jagannadhacharyulu, J.C.
1. This ease arises out of a reference made by the Additional Sessions Judge, Manipur, under Section 488, Cr. P.C. to set aside the order of the Sub-Divisional Magistrate-Imphal East, Manipur, dated 9-3-65 passed by him in N. F. I. R. case No. 309 of 1964 under Section 145 (6) Cr. P.C. declaring that -the-respondents were in possession of the disputed land at the relevant time, that they are entitled to the possession thereof until they are evicted therefrom in due course of law and forbidding all disturbance of such possessions until such eviction.
2. The brief facts of the case which led to the reference in question are as follows : : There are about 6 1/2 paris of land in Matai village, covered by Pattas No. 1/282, 2/106 and 3/136 Imphal East. The case of the petitioners herein is that the petitioners Nos. 1, 6 and 7 purchased the said land in 1957 from the heirs of late Sir Churachand Singh, the Maharajah of Manipur under a registered sale deed, that they got their names mutated in the above mentioned pattas, in Mutation Case No. 642 of 1957 of the Sub-Deputy Collector, Imphal East on 9-9-1958, that since the date of the purchase, they have been in physical possession and enjoyment of the land without any interference by any one, that the remaining petitioners herein took on lease 5 paris of land out of the disputed land from the purchasers and that all of them jointly cultivated the land. The case of the respondents, on the other hand, is that the 5th respondent is the Manager oil the present Maharajah of Manipur, that the respondents have been in possession and enjoyment of the disputed land since I957, that the 5th respondent's lessees were delivering the. the yield to him and that the petitioners herein' have not been in possession of the land in question.
3. The Sub-Divisional Magistrate, Imphal East, drew up proceedings under Section 145(1) Cr. P.C. on 16-11-64 on the basis of a report filed by the Police in F. I. R. 961 of 1964 in the month of August. 1964. The learned Sub-Divisional Magistrate called upon the parties to submit written statements of their respective claims as regards the fact of actual possession and required them to put in such documents or to adduce, by putting in affidavits, the evidence of such persons as they relied upon in support of their respective claims under Section 145 (1) Cr. P.C. The learned Sub-Divisional Magistrate attached the land in question.
4. The Sub-Divisional Magistrate posted the case to 22-12-64 for appearance for the parties. On that date, both the parties filed their written statements. The petitioner herein filed the affidavits of 6 witnesses and also Exts. D/1 to D/10. The respondents filed Exts. A/1 to A/4 and the affidavits of 4 witnesses. The Sub-Divisional Magistrate heard arguments on 27-1-65 and posted the case to 1-2-65 for orders. Hut, in the meanwhile on 29-1-65, the 5th respondent herein filed a petition to admit his affidavit dated 27-1-65 in proof of his allegations. The Sub-Divisional Magistrate passed an order on 5-2-65 allowing the petition, Subsequently, the Sub-Divisional Magistrate passed the impugned final order under Section 145 (6) Cr. P.C. on 9-3-65.
5. Aggrieved with the above order, the petitioners moved the Additional Sessions Court, Manipur, under Section 435 Cr. P.C. to make a reference to this Court to set aside the order of the Sub-Divisional Magistrate. The learned Additional Sessions Judge agreed with the contentions of the counsel for the petitioners and made a reference to this Court under Section 438, Cr, P. C. to set aside the order of the Sub-Divisional Magistrate.
6. The counsel for the petitioners urged mainly two grounds in support of his contention that interference by this Court under Section 115 C, P. C. is called for and that the order of the Sub-Divisional Magistrate is liable to be set aside. His first contention is that under Section 145(4) Cr. P.C. the Sub-Divisional Magistrate should have considered only the affidavits which were filed before 1-2-65, that he should not have admitted the affidavit filed by the 5th respondent and that therefore the order of the Sub-Divisional Magistrate is illegal. He laid emphasis on the word 'then' which occurs in Sub-section (4) of Section 145 Cr. P.C. To understand the force of his argument, it is necessary to extract Sub-section (4) of Section 145 Cr. P.C. as it stood after and before its amendment by Act XXVI of 1955.
Inquiry as to possession. (4) The Magistrate shall then, without reference to the merits 01 the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry as 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 the order before mentioned in such possession of the said subject:
Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained there:
Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the the party so dispossessed, as if he had been in possession 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.
OLD
Inquiry as to possession. (4) 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 so put in, hear the parties, receive all such evidence as 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 any and which of the parties was at the date of the order before-mentioned in such possession of the said subject:
Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed he may treat the party so dispossessed as if he has been in possession at such date:
Provided also, that if the Magistrate considers the case one of emergency, he may at any time at(sic) the subject of dispute, pending his decision under this section.
The order of the Sub-Divisional Magistrate shows that the same argument was urged before him by the counsel for the petitioners. The Sub-Divisional Magistrate relied on Sub-section (9) of Section 145 Cr. P.C. and held that he has got the power at any stage of the proceedings, on the application of either party, to issue summonses to any witness directing him to attend or to produce any document or thing and that therefore, he was entitled to admit the affidavit of the 5th respondent even at a late stage. The contention of the counsel for the petitioners is that the said order of the 'Sub-Divisional Magistrate is erroneous. There is divergence of opinion between the several High Courts regarding the question whether Sub-section (9) of Section 145 Cr. P.C. applies to proceedings under Section 145 Cr. P.C. or mot. In Kesnab Acharya v. Somenath Behera AIR 1958 Orissa, 79, it was held that the words 'hear the parties' occurring in Sub-section (4) of Section 145 Cr. P.C., do not include taking the evident of the parties even though they might not have chosen to file affidavits on their behalf.
It was further held that the expressions 'hearing the parties' occurring in Sub-section (IA) of Section 146 and 'hear the parties' occurring in Sub-section (4) of Section 145 Cr. P.C., must be given the same meaning, that as the former sub-section excludes the examination of the parties as witnesses, it is difficult to hold, as a matter of statutory construction, that the latter sub-section includes such an examination that, therefore, the words 'hear the parties' occurring in Sub-section (4) of Section 145 Cr. P. C, mean 'hear the arguments of parties' and that the words do not include taking the evidence of the parties, it they 'desire to appear as witnesses. The Allahabad High Court took a similar view in Bhagwat Singh v. State : AIR1959All763 . The Punjab High Court also holds the same view, as can be seen from Jodh Singh v. Bhagambar Das AIR 1961 Punj 187.
But, the Rajasthan, Madhya Pradesh and Madras High Courts took a different view. In Bahori v. Ghure , it was held that the proviso to Sub-section (4) of Section 145 is merely an enabling provision of law, which entitles the Magistrate to summon and examine any of the persons whose affidavits have been filed on behalf of the parties, if he so desires in order to decide the question of possession; but that the proviso does riot preclude the Magistrate from calling as a witness any other person whom he thinks proper to examine. It was further held that Sub-section (9) of Section 145 contemplates such a situation, that Sub-section (9) lays down that the Magistrate, if he thinks fit, at any stage of the proceedings under the section, on the application of either party, issue summons to any witness directing him to attend or to produce any document or thing', that if, on the application of either party to the proceeding the Magistrate can do so, he can do so equally in the ends of justice of his own accord and that Section 540 Cr. P.C. empowers the Magistrate like any other Court to do so. Vide also Kanhaiyalal v. Devi Singh AIR 1961 Madh Pra 302, and Challamuthu Padayachi v. Rajavel : AIR1964Mad263 , where the case law on the subject was referred to and discussed.
7. I am in respectful agreement with the decisions of the High Courts of Rajasthan, Madhya Pradesh arid Madras referred to above. Even though Sub-section (4) of Section 145 Cr. P.. C. lays down that the Magistrate shall decide the question whether any and which of the parties was on the date of the order under Section 145(1) Cr. P.C. in possession of the property in dispute with reference to the statements, documents and affidavits filed by them, still under the first proviso to Section 145(4) Cr. P.C. the Magistrate is empowered to summon and examine any person, whose affidavit has been put in as to the facts contained therein. Sub-section (9) of Section 145 gives power to the Magistrate to issue summonses to any witness at any stage of the proceedings directing him to attend or to produce any document or thing.
Besides, Section 540 which is a general section also confers the same powers on him. It lays down that any Court, may, at any stage of any inquiry, trial or other proceedings under the Cr. P.C. summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and that the Court .shall summon and examine or recall and re-examine any such person, if his evidence : appears to it to be essential to the just decision of the case. This is a general section, which applies to all proceedings under the Criminal Procedure Code. The same view was taken by the Assam High Court in Ghutu Akanda v. Somser All AIR 1964 Assam 105, and by the Orissa High Court in Rajakishore Mohanty v. Niranjan Mohanty AIR 1964 Orissa 226.
Though the proceedings under Section 145, were sought to be made summary by the Amendment Act XXVI of 1955 by enabling the parties to file affidavits instead of adducing oral evidence in the box, still it does not deprive the Magistrate of his power under Sub-section (9) of Section 145 and under Section 540 Cr. P.C. which is general. So, the Sub-Divisional Magistrate acted within his powers in admitting the affidavit of the 5th respondent on 5-2-65.
8. The second contention of the counsel of the petitioners is that the Sub-Divisional Magistrate acted illegally in failing to peruse the affidavits filed by the parties. Under Section 145 (4) Cr. P.C., the Magistrate should peruse the statements, documents and affidavits. In this case, the learned Sub-Divisional Magistrate perused the statements. He also perused the documents and discussed the same in paragraph 5 of his judgment. No doubt, there is some mistake with regard to the date of Ext. A/1, Ext. D/1 shows that the mutation was effected in the names of the petitioners 1, 6 and 7 in respect of- the present disputed land on 9-9-58 on the strength of a registered sale deed obtained by them. Ext. A/1 shows that the Additional Deputy Commissioner, Manipur, set aside the order of mutation on 17-12-59 in Revenue Appeal 74/1963. But, Ext. A/1 does not bear the correct date.
The learned S. D. M. mentioned the number of Revenue Appeal Case as 74 of 1963. This could not be correct, in as much as the order itself was passed by the Deputy Commissioner on 17-12-59. So, the Revenue Appeal could not be filed in 1963. The learned S. D. M. did not attach weight to Exts. D/7 to D/9 (copies of Jamabandi accounts and Exts. D/10 to D/14 (Katcha pattas) on the ground that the order of mutation was set aside. Then, the learned S. D. M. relied on Ext. A/3 which is a copy of the order of the E. A. C. and First Class Magistrate in his N. F. I. R. Case No. 10 of 1957 passed on 28-8-57 under Section 145 Cr. P.C. and Ext. A/4, copy of the judgment of the Sessions Judge, Manipur, in Criminal Revision Case No. 24 of 1957 under which the Sessions judge dismissed the revision. So Exts. A/3 and A/4 go to show that there were prior proceedings under Section 145 Cr. P.C. with respect to the land in question, that the 1st petitioner and the 5th respondent herein were parties to the same and that the 5th respondent's possession of the land in question was upheld.
The contention of the learned Counsel for the petitioners is that the previous orders under Section 145 do not debar initiation of fresh proceedings under Section 145 Cr. P.C. He relied on Nepal Chandra Sardar v. Prafnlla Kumar Saha (1940) 44 Cal WN 92S, and Haripado Mazumdar v. Dhani Ahmad AIR 1935 Cal 494. But, they held that the previous orders can be considered along with other evidence on the record. To the same effect is the decision in Ram Kripal Singh v. Sidheshwar Singh 42 Gri LJ 876 : AIR 1941 Pat 516, (cited by the counsel for the respondents). Another contention of the learned Counsel for the petitioners is that the Magistrate relied on the documents to determine the question of title, that he passed the order in question on the footing that possession follows title and that he was not entitled to do so, as laid down in Khartar Sao v. Prodi Singh : AIR1952Pat234 . This contention is not correct. The learned Magistrate relied on the documents Exts. A/1 and A/4 to show that there were previous proceedings between the 1st petitioner and me 5th respondent herein and that the 5th respondent's possession was upheld. The learned Magistrate did not state in his order that the 5th respondent has got title to the land and that possession follows his title.
9. But, the learned Magistrate did not 'peruse' the affidavits also, as required by the mandatory provisions of Sub-section (4) of Section 145 Cr. P.C. In paragraph 5 he simply disposed of the affidavits in one sentence by stating that 'the six affidavits filed by the petitioners and the five affidavits filed by the respondents herein, no doubt, go to support the claims of the respective parties,' but that the documents are important'. He relied on the provisions of Section 92 of the Indian Evidence Act in support of his reasoning. Probably, he meant that as the affidavits contain oral averments, the written documents are more important then the affidavits. Section 92 of the Indian Evidence Act has no application to the facts of the case and is irrelevent. The word 'peruse' has got a definite meaning. It means 'to examine in detail or to revise or to read attentively or critically', vide Chambers' Twentieth Century Dictionary - 1958 reprint,
Various High Courts in India also held likewise. In Venkata Snbba Reddy v. State of Andhra Pradesh AIR 1960 Andh Pra 500, the documents were referred to by the S. D. M. But, he ignored the affidavits, which constituted the material evidence in the case. He did not take them into consideration. It was held that ex facie the order was improper and that there was miscarriage of justice, because the Magistrate did not fake into consideration the affidavits filed by the parties. In Rudra Singh v. Bimla Devi : AIR1960Pat505 , it was held that although the amendment of Section 145 by Act XXVI of 1955 has done away with the necessity of examining witnesses in Court and has provided that the Magistrate can come to his decision on the question of possession on the basis of affidavits filed on behalf of the parties, the Magistrate should remember that those affidavits must be considered because they take the place of oral evidence, and that they should not be brushed inside on the ground that there is oath against oath or that the affidavits cannot displace the weight of the documentary evidence. It was also held that the Magistrate should consider the affidavits in the same way in which oral evidence is considered and that he should give his reasons for rejecting the statements made in each affidavit.
In Mt. Sarfi v. Mt. Sugo : AIR1962Pat253 , the Magistrate did not examine each affidavit. He did not give his reasons either for acceptance or for rejection of the same. He referred to the affidavits in one lump and simply stated that the parties tiled a number of documents and that, therefore, he rejected the affidavits filed by the second party and accepted those of the first party. It was held that the Magistrate should peruse each affidavit. It was also held that he should at least make it apparent that he has applied his mind to the affidavits. The Kerala High Court expressed the same view in A. Narayananan Kutty v. Sekhar Menon : AIR1964Ker308 . The view of the. Allahabad High Court is also the saint. Vide Raghubir Singh v. Gram Sarnaj Kotra : AIR1964All394 . It was further held in that case that the Magistrate should not decide the question of title and, on that basis the question of possession. This Court also held likewise in Criminal Revn. No. 4 of 1965 (Manipur). So, it is apparent that in the present Case the Magistrate did not 'Peruse' the affidavits filed by the parties, that he did not apply his mind to them and that he did not consider the oral evidence on record. As such, his order is erroneous, materially irregular and is liable to be set aside.
10. The contention of the learned Counsel for the respondents, however, is that this Court as a Court of Revision should not enter into discussion of the facts of the case and that, in the absence of gross irregularities, the order of the learned S. D. M, should not be set aside, He relied on the following decisions. In Kulada Kinkar Roy v. Danesh Mir (1906) ILR 33 Cat 33 (FB), it was held that the High Court should not ordinarily examine whether the grounds on which the Magistrate was satisfied as to the likelihood of a breach of the peace afford a reasonable foundation for his conclusion. It was also held that the Court will not interfere unless it is satisfied that the parties seeking interference have been prejudiced by the proceedings in the Courts below. In Nurul Hasan v. Mst. Majidan 45 Cr. LJ 769 : AIR 1944 All 210, it was held that, unless the Magistrate has acted with gross irregularity, the High Court could not interfere in revision with an order passed by the Magistrate under Section 145(1) Cr. P.C.
In Haladhar Bhowmik v. Julmat Bepari AIR 1954 Tri 10, it was held that 'whether the material is sufficient or not to pass an order under Section 145 Cr. P.C. is mostly for the Magistrate's consideration and that the use of the Magistrate's discretion in the matter should only be interfered with in an exceptional case, when obviously the order is unreasonable and unjustifiable.' In Ram Narayan Goswami v. Biswanath Goswami : AIR1959Cal366 , it was held that the appreciation of evidence is a question of fact and that the High Court will not interfere with a finding of fact in a case under Section 145 Cr. P.C. These rulings do not apply to the present case. There was no appreciation by the Magistrate of the facts mentioned in the affidavits. So, there is no question of interference with findings of fact by the Court of Revision.
Again, the decisions already referred to regarding the affidavits in para 9 of this judgment including AIR 1960 Andh Pra 500, are an effective answer to the contention of the learned Counsel for the respondents that the Revisional Court should not interfere. It was held in that case that the High Court may examine the correctness, legality or propriety of any order passed by an inferior Criminal Court and that if it finds that the order is not correct or that it is illegal or improper, it may exercise any of the powers conferred on a Court of appeal by Section 423, Criminal Procedure Code, as laid down by the Supreme Court in Ramgopal Ganpatrai v. State of Bombay : 1958CriLJ244 . It was also held that the Revisional jurisdiction of the High Court in respect of an order under Section 145(4) Cr. P.C. is the same as in respect of other orders and proceedings of inferior Criminal Courts, that, where the Magistrate has not complied with the mandatory requirements of Section 145(4) Cr. P.C., it follows that ex facie the order must be held improper and that on account of the failure of the Magistrate to take into consideration the affidavits and large portions of material evidence, the natural inference must be that there has been a miscarriage of justice. So, the order of the lower Court is improper and is liable to be set aside.
11. In the result, the Reference is accepted. The case is sent back for fresh disposal in the light of the observations made herein. The Sessions Judge should make over the case to another Magistrate for disposal according to law. The parties are not allowed to let in any further evidence. The Magistrate should 'peruse' the evidence and also give findings on the effects of the previous orders under Section 145 Cr. P.C. and pass a well-considered order after hearing the arguments.
.