Ramashankar and Others vs State of U.P. and Others

R.N. Ray, J.—Heard the learned Counsel for the applicants at length, who submitted that the police made a challani report on 25.6.78 and the learned Sub-Divisional Magistrate, Rasra passed an order on 19.9.1978 which was a preliminary order u/s 145(1), Code of Criminal Procedure in respect of old plot No. 686 which has been carved as new plot No. 365. Originally out of old plot No. 686.15 (sic) of land was purchased by Sri Rama Shanker and others who are the present applicants and an area of .052 acres of land was purchased by Ram Bachan, the opposite party. Rama Shanker had constructed his house in an area of .152 acre. In the consolidation operation, a new plot No. 365 was given to the aforesaid old No. 686 out of which .62 dicimal was recorded in the name of Rama Shanker and .5 dicimal was recorded in the name of Ram Bachan and there was a dispute between the parties with respect of the land appended by red, as shown in the map given in the police report. The learned Magistrate issued preliminary order in respect of old plot No. 686 which measured an area .20 acres. The said new plot No. 365 was carved out from old plot No. 686, but the preliminary order was passed in respect of the some different land which was not at all in dispute.

The learned Magistrate made the spot inspection but no memo of local inspection was prepared nor any copy was given to either parties, as required under the provisions of Section 310, Code of Criminal Procedure and the learned Magistrate relied upon his knowledge derived from the local inspection and the learned revisional court also relied upon on the same which resulted in the miscarriage of justice. It has been said that the local inspection can be made by the Judge or the Magistrate, as the case may be, only for proper appreciation of the topography of the place and not for other purpose and that too should be in conformity of the provisions of Section 310, Code of Criminal Procedure.

In this connection, the learned Counsel for the Appellants, referred to decisions, as in Gopal Upadhya and Another Vs. Vishwanath Pathak and Others, , which is a single Judge decision of the Patna High Court. That decision was based upon another decision of Patna High Court, as in Shreedhar Thakur and Others Vs. Kesho Sao and Others, . Another decision was placed of Karnataka High Court, as in AIR 1964 Mys 177.

It was submitted that from the report of the Survey of Lekhpal, it is palpable that the learned Magistrate relied upon the some other plan, which is not new plot No. 365 carved out from old plot No. 686. It was further submitted that the learned Magistrate relied upon the affidavit which was not sworn before him but sworn before some other Magistrate who was then officiating and it has been submitted that that cannot be done. The affidavits in connection with the case must be sworn before that court, so that the court may put reliance upon the same as a piece of evidence. In this connection, a decision of Hon''ble Supreme Court, as in Chhotan Prasad Singh and Others Vs. Hari Dusadh and Others, , was placed. The Hon''ble Supreme Court held that under the provisions of Oaths Act, Section 7(a) such evidence if sworn or affirmed before the Magistrate who was not in seisin or the case u/s 145, Code of Criminal Procedure then that could not be read in evidence in a brief u/s 145, Code of Criminal Procedure. The learned Counsel for the other side''s contention was that it is an old case. As long time has elapsed and further consolidation proceedings have started and that there is no such apprehension of breach of peace at the moment, as such the court should not interfere with the judgment, as passed by the learned Court below or by the Judge or the revisional court because that will result in the disturbance of the matter which has been put to rest by those decisions.

Heard. Considered. Heard the learned A.G.A. also. Since the learned Magistrate cannot put any reliance upon the knowledge drawn on the spot inspection, the judgment of the learned court below is vitiated by wrong approach of the learned court. The spot inspection can be done only in compliance with the provisions of Section 310, Code of Criminal Procedure and not otherwise. In this case, it was an error which modulated the judgment. The learned revisional court also erred in putting reliance upon the findings of the learned Magistrate which considerably based upon his knowledge arrived at by spot inspection. The new plot is 365 but the learned Magistrate all through proceeded to adjudge the case relating to report of old plot No. 686 but did not take into consideration the carving of new plot and the result of the consolidation proceedings. The learned Magistrate relied upon the affidavit shown by the parties which were not sworn before him but sworn before some other Magistrate which was not permissible in view of Section 4(a) or the Oaths Act. In this connection, in view of the decision of the Hon''ble Apex Court and also in view of the decision, as reported above, to consider the judgment of the learned court below and also of the revisional court are erroneous which resulted in the miscarriage of Justice.

It is true that where the revision application has been preferred and has been disposed of, High Court will be very slow to interfere in its power u/s 482, Code of Criminal Procedure, unless it finds that there is flagarent miscarriage of justice resulted due to misconception of law or glaring of facts.

In the circumstances, this application is allowed. The judgment of the learned Magistrate and the learned revisional court are both set aside. The parties may seek remedy, if they so like, before the appropriate civil court.