Prem Narayan B. Tiwari vs Sitaram R. Soni and Others

R.C. Mishra, J.—This petition, u/s 482 of the Code of Criminal Procedure (for short ''the Code''), is directed against the order-dated 28-10-2002 passed by First Additional Judge to the Court of First Additional Sessions Judge, Panna in Cri. Revision No. 38/2000, whereby the petitioner''s revision against order dated 2-5-2000 passed by the Sub-Divisional Magistrate, Panna in Cri. Case No. 16/Section 145, Cr.P.C./2000 was dismissed.

The order in question was passed by the SDM in the proceedings initiated, u/s 145 of the Code, upon the application moved by the petitioner on 19-1-2000. According to the petitioner, on 17-1-2000 at about 4 p.m., the respondents had forcibly encroached upon Chabutra (a platform) and the room respectively situated in the southern and eastern portion of his house, bearing No. 60-C, situated in Katra Mohalla, Panna. The Magistrate forwarded copy of the application to the SHO Kotwali for inquiry. In response, the police officer submitted a report indicated that the dispute between the parties could give rise to a breach of peace. The Magistrate, accordingly, passed a preliminary order, u/s 145(1) of the Code, directing the respondents to file written statements in support of their claim regarding the actual possession of the subject-matter of dispute.

The respondents, while pleading that they were in a peaceful possession as owner of the House bearing No. 63/A and had not encroached upon any part of the house belonging to the petitioner, raised objection as to maintainability of the proceedings. The Magistrate, after hearing the arguments on the question of maintainability, expressed, vide order dated 28-4-2000, his inclination to inspect the spot. Accordingly, on 2-5-2000, he inspected the spot in presence of the parties to the dispute; prepared a report and passed the final order directing the petitioner not to interfere with the possession of the respondents on the disputed land. As indicated already, the petitioner''s revision was also dismissed.

There cannot be any conflict with the proposition that while exercising powers, u/s 145 of the Code, with regard to a dispute concerning an immovable property, the SDM can direct a local inspection. However, the proceedings, u/s 145 of the Code, are quasi-judicial and quasi-administrative in nature. Moreover, as contemplated under Sub-section (1) of Section 148 of the Code, the SDM is required to depute any Magistrate subordinate to him to make such an inquiry and the report of Magistrate so deputed may be read as evidence by virtue of Sub-section (2) thereof. In other words, although, subordinate Magistrate may be deputed, u/s 148 of the Code, to make a local inspection and report yet, the provision does not give power to the Magistrate in whose Court the proceedings are pending to inspect the spot in dispute himself Deo Prasad Saha and Others Vs. Ravi Ravidas and Others, referred to.

In this view of the matter, the SDM committed a serious illegality in passing the final order in the proceedings on the basis of his own inspection report that could not have been validly treated as a piece of evidence in the case.

This Court is not oblivious of the legal position that Section 397(3) of the Code bars a second revision. However, as explained by the Apex Court in Krishnan and another Vs. Krishnaveni and another, and reiterated in Rajathi Vs. C. Ganesan, , when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Court or the required statutory procedure has not been complied with or there is failure of justice, it is the duty of the High Court to have the mistake committed by the revisional Court corrected at the inception lest grave miscarriage of justice would ensue.

For these reasons, the petition is allowed. The impugned order passed by the SDM and affirmed by the ASJ is hereby set-aside. The matter is remanded to the SDM for decision afresh in accordance with law. It is further made clear that nothing herein contained shall preclude the SDM from exercising his discretion u/s 148(1) of the Code.