@JUDGMENTTAG-ORDER
1. This revision petition is directed against the order dt. 13-12-1977 passed by the Executive Magistrate, Sagar Taluk, Sagar, in C. Mis. Case No. 2 1977-78, under Section 145 CrlPC holding that respondent No. 2, Party No. 2, was in possession of the property in dispute, namely, Survey No. 38 of Hosahalli Village, on the date of the preliminary order namely 15-11-1977 and that he is entitled, to harvest the standing crop and also that he is entitled to peaceful possession and enjoyment of the same.
2. The relevant facts are that the Sub-Inspector of Police, Rural Police Station, Sagar, filed a report, dt. 19-8-1977, to the Executive Magistrate, Sagar Taluk, Sagar, requesting that action under Sec. 145 Cr. PC be taken in regard to the said land. The learned Magistrate issued a preliminary order on 15-11-1977 calling upon the parties to appear before him on 24-11-1977 to put in written statements of their respective claims as to the fact of actual possession of the subject-matter in dispute. Both the parties were present on 24-11-1977. The learned Magistrate adjourned the case to 8-12-1977 for evidence. On 8-12-1977, both the parties were absent. He, therefore, directed issue of fresh notices calling upon the parties to be present before him on 19-12-1977 But, by 9-12-1977, the second party filed an application before the learned Magistrate praying that emergent order be issued in regardto the harvesting of the crop as the crop on the land was ready for harvesting. The learned Magistrate directed issue of emergent notices to the parties to appear before him on 13-12-1977 for the purpose of enquiry in the case. On 13-12-1977, both the parties appeared. No written statements were filed. The petitioner first party, produced one ''Patta'' Book and two receipts for having paid land revenue. The second party produced receipts for having paid, land revenue, Grain Vouchers for having paid the levy paddy, Pahani extracts for the years 1977-78, Fertiliser Card for having secured, grant of fertiliser to him by the Agricultural Department in regard to the land and an application addressed, by him to the Village Accountant for writing a Pahani in his name and, affidavits of Shankaranarayana Rao and Hutchamma, who were said to be the cultivators of the adjacent lands. The learned Magistrate received this material on record and then proceeded to pass the impugned order.
3. In the impugned order, the learned Magistrate has reasoned that it was clear to him that the father of Party No. 2 had been paying land revenue as a cultivator since 1938; that the pahani for the current year was also in favour of the father of Party No. 2; that the pahanies for the previous years also indicated that the father of Party No. 2 had cultivated the land; that Party No. 2 was paying the levy paddy and he had been granted the fertiliser by the Agricultural Department in regard to the said land; that the patta of Party No. 2 disclosed that he was paying land revenue for the land for the year 1973-74, 1974-75, 1975-76, 1976-77 and 1977-78 as ''Khatedar'' and, lastly, that the affidavits of Shankaranarayana Rao and Hutchamma also were in support of his possession and enjoyment. It is only on this reasoning that he has held in favour of Party No. 2. He has nowhere adverted to the two documents produced by the first party.
4. It is plain from what has been narrated in the preceding paragraph that the learned, Magistrate has produced an order after referring to the material relied upon by Party No. 2 only and without adverting to the material produced by the first party and weighing that material with that produced by Party No. 2. This is one lacuna in regard to the merits of the order passed by the learned Magistrate.
5. Sec. 145(4) of the Code of Criminal Procedure reads as follows:
"The Magistrate shall then, without reference to the merits orthe claims of any of the parties to a right to posses the subject of dispute, peruse the statements so put in, hear the parties, receive all such, evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under sub-sec.(1), in possession of the subject of dispute."
6. It is to be noted that the enquiry in such proceedings has to be conducted by a Magistrate as per this provision. The Magistrate shall peruse the statements so put in, hear the parties, receive all such evidence as may be produced by him, take such further evidence, if any, as he thinks necessary and so on. The provision is mandatory. Therefore, the enquiry must be conducted according to this provision. If it is not conducted in accordance with this provision, it would not be anenquiry according to law. 7. The aforementioned, provision does not permit the use of affidavits as evidence, (while the same was permitted under the Code of 1898). Therefore ''evidence'' means ''evidence'' according to the Evidence Act. Sec. 1 of the Evidence Act clearly excludes affidavits from its purview. Sec. 3 of the Evidence Act defines ''evidence'' as follows:
"Evidence means and includes-(1) all statement which the Court permits or require to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence."
8. Therefore, the learned Magistrate could not have in law, taken into consideration the affidavits of Sri Shankaranarayana Rao and Hutchamma relied upon by respondent-3, Party-2. This is a legal defect in the impugned order passed by the learned Magistrate.
9. The next question would be about the mode of enquiry contemplated by Sec. 145(4) CrlPC. This is provided in Sec. 274 of the CrlPC.
10. Section 274 of the CrlPC reads as follows:
"(1) In all summons-cases tried before a Magistrate, in all inquiries under Secs. 145 to 148 (both inclusive), and in all proceedings under Section 446 otherwise than in the course of a trial the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of his evidence in the language of the Court:
Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court.
(2) Such memorandum shall be signed by the Magistrate and shall form part of the record."
11. A plain reading of this provision makes it quite clear that it is the legal duty of a Magistrate to examine witnesses and make a memorandum of the substance of the evidence of the witnesses in the language of the Court; of course, subject to the proviso below. It is not necessary to state that ''witnesses'' include parties also. The records maintained by the learned Magistrate are before the Court and it is seen therefore that he has nowhere examined either the parties or the witnesses and recorded their evidence as provided by Sec. 274 of the CrlPC.
12. Hence, it has to be held that even in regard to the mode of enquiry under Sec. 145(4) CrlPC, the learned Magistrate has violated the provisions of Sec. 274 CrlPC and as such, the enquiry conducted by the learned Magistrate and which has resulted in the impugned order, is no enquiry in the eye of law. Therefore, the proceedings that the learned Magistrate has conducted from 13-12-77 are vitiated.
13. In the result, this petition is allowed and the order dt. 13-12-77 passed by the Executive Magistrate, Sagar Taluk, in C. Mis. Case No. 2/1977-78, is setaside. The learned Executive Magistrate is directed to hold an enquiry, according to law, bearing in mind the observations made in the body of this order, after affording reasonable opportunity to the parties to put in their written statements and to produce their evidence in support of their claims and, thereafter, proceed to dispose of the case.
