M.N. Shukla, J.@mdashDoubting the correctness of the decision in Ram Dular v. State of U.P. 1980 AWC 325 : 1980 ACR 230 a learned single Judge of this Court referred the instant case, arising out of Criminal Misc. Petition u/s 482 Code of Criminal Procedure, to a larger Bench and that is how the matter has come before this Bench for adjudication. The question at issue involves the interpretation of Section 310 of the Code.
2. The short facts are that on 1-6-1978 Respondent No. 2 Sri. Krishna Madhava Chaudhary moved an application before the City Magistrate, Etawah alleging that the three storeyed building situate in Mohalla Sewa Kali, Etawah city owned by the present applicant Satya Prakash and his two brothers was in a dilapidated condition, likely to fall down and cause injury to persons living or carrying on business in the neighbourhood or passing by and consequently the removal of the budding was necessary. On this application the Magistrate called for a report from the Tahsildar, Etawah who inspected the spot and submitted his report dated 25-7-1978. After a perusal of the report the Magistrate passed a preliminary order u/s 133 Code of Criminal Procedure and issued notice to both parties to adduce their evidence. Besides recording the evidence the Magistrate after giving notice to the parties made local inspection on 5-8-1979 and incorporated his inspection note. The applicant Satya Prakash and his two brothers filed written statements. While Satya Prakash and his brother Jai Kumar opposed the allegations made in the complaint, the other co-sharer, namely, Om Prakash supported the version of Sri. Krishna Madhav Chaudhary, complainant. The City Magistrate passed the final order in the case on 13-8-1979 whereby he confirmed the conditional order dated 2-8-1978 and directed Satya Prakash and his brother Jai Kumar to get the building demolished within a period of one month failing which it would be got demolished by the Nagar Palika, Etawah. The present applicant Satya Prakash filed a revision which was rejected by the IV Additional Sessions Judge, Etawah and hence this application u/s 482 Code of Criminal Procedure, in this Court with a prayer that the orders passed by the City Magistrate and the IV Additional Sessions Judge, Etawah be quashed.
3. The principal contention urged on behalf of the applicant was that the City Magistrate, Etawah who was seized of the case u/s 133 Code of Criminal Procedure made local inspection of the building in question and made use of that inspection in coming to the conclusion that the building was in such a dilapidated condition that it was necessary to get it demolished. It was submitted that the City Magistrate had no jurisdiction to make local inspection and his entire judgment stood vitiated by the fact of its being based on the said inspection. In support of the argument the learned Counsel for the applicant relied on a decision of this Court in Ram Dular v. State of U.P. 1980 AWC 325 : 1980 ACR 230. In that case the Magistrate who was seized of the matter u/s 133 Code of Criminal Procedure had made local inspection and then passed an order directing demolition of the property. The argument advanced before the learned single Judge in that case was that the Magistrate had no jurisdiction to make local inspection and his judgment was rendered illegal inasmuch as he was influenced by the local inspection made by him. This argument found favour with the learned single Judge with the result that he quashed the order by ''the Magistrate and remanded the case for fresh trial.
4. We have given our most anxious consideration to the decision in Ram Dular''s case (supra) and we regret our inability to agree with the rule laid down therein. It appears that Section 310 of the Code of Criminal Procedure which provides for local inspection went unnoticed in that ruling. Section 310 falls in the Chapter "General Provisions As To Inquiries And Trials" and reads as follows:
310. Local inspection-(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. (2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of costs.
5. It has been vehemently contended by the learned Counsel for the applicant that the proceedings u/s 133 Code of Criminal Procedure in the instant case constituted neither ''inquiry'' nor ''trial'' and, therefore, the provisions of Section 310 were not attracted, consequently the Magistrate had no jurisdiction to make local inspection and utilise the same for the purpose of giving his decision. A perusal of Section 310 shows that it makes use of three expressions:
(i) Inquiry,
(ii) trial, and
(iii) other proceedings.
6. A case u/s 133 Code of Criminal Procedure would surely not fall within the ambit of ''trial'' but we are inclined to hold that on a proper construction of the term ''inquiry'' such proceedings would be embraced within its scope. The word ''inquiry'' used in Chapter XXIV must include proceedings commenced under Chapter X, part B which deals with public nuisance, covered by Sections 133 - 143. Infact, the word ''inquiry'' has been expressly used by the Legislature in Section 137, Sub-section(i) whereof provides that if a conditional order u/s 133 has been made, a Magistrate shall before proceeding u/s 138 ''inquire'' into the matter. Sub-section (2) further says that if in such ''inquiry'' the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of existence of such right has been decided by a competent Court. The definition of ''inquiry'' contained in Section 2(g) of the Code lends support to this interpretation. It says ''inquiry'' means every inquiry other than a trial, conducted under this Code by a Magistrate or Court. The definition confirms the view that Section 310 is wide enough to cover every kind of inquiry and the word has not been used in a limited sense. The term refers to any judicial inquiry into the matter by a Magistrate or other court. Thus, there appears to be no tangible reason as to why a restricted meaning should be assigned to the word ''inquiry'' as it occurs in Chapter XXIV of the Code.
7. Alternatively, however, there is absolutely no reason why a case u/s 133 Code of Criminal Procedure will not be covered by the expression ''other proceeding'' occurring in Sub-section (1) of Section 310 Code of Criminal Procedure. The word ''proceeding'' is a noun from the verb ''proceed''. "It is a word of equivocal import and of great generality, having many meanings and varied usages, and of varying and loose significance. Where matters of procedure in courts or actions are involved, to conduct, to begin and carry on an action or proceeding, to begin and carry on a legal action, to commence and carry on a legal process". (See Corpus Juris Secundum, Volume 72, page 972) Black''s Law Dictionary, Revised Fourth Edition, page 1368 contains the following note on the connotation of ''proceeding''.
In a more particular sense, any application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object.
8. It appears that the Legislature advisedly incorporated the expression proceeding'' in Sub-section (1) of Section 310 Code of Criminal Procedure so that a Magistrate may have jurisdiction to make local inspection after commencing either an inquiry or trial relating to an offence, or any other proceeding. Section 310 corresponds to Section 539-B of the old Code of 1898 and that provision was judicially construed in Ram Kishan v. Rameshwar Dayal 1968 AWR 608. An identical argument was advanced in that case and repelled. It was contended that inasmuch as the phrase ''other proceedings'' immediately followed the words ''any inquiry'' or ''trial'' it was merely ''ejusdem generis'' and referred to the ''proceedings'' before the court of first instance and not before the appellate or revisional court. Rejecting the argument the Bench observed:
If the words ''inquiry'' and ''trial'' were followed merely by the word �proceeding'' then perhaps the argument of Mr. Chaudhary would have bad some weight but the words used in the section are ''at any stage of any inquiry, trial or other proceedings'' which clearly indicate that the contemplated proceedings should be other than and distinct from ''inquiry'' or ''trial''. The use of the word ''other'' in this context is very significant. There can be no manner of doubt that appeals, revisions and/or intermediary steps taken by a Judge will be such ''other proceedings''.
9. The law appears to be settled that Section 310 Code of Criminal Procedure is applicable not only to an inquiry or trial relating to an offence but also to other proceedings, such as those Under Sections 133 and 145 Code of Criminal Procedure. In fact proceedings u/s 133 and 145 Code of Criminal Procedure are not in connection with inquiry or trial relating to an offence and yet they call for local inspection. Abundant authority is available for that proposition but it appears those rulings were not cited before ''the learned single Judge who decided the case of Ram Dular (supra). Apart from Ram Kishan''s case (supra) we may also advert to a few other notable decisions on the point. In
The object of local inspection is to understand and appreciate the topography of the land in dispute in order to aid the Magistrate in appreciating the evidence offered in Court, but the local inspection cannot take the place of legal evidence, much less the result thereof can be used as a basis for the decision.
In
10. Another submission made on behalf of the applicant was that permitting a Magistrate to make local inspection in proceedings u/s 133 Code of Criminal Procedure offended against the fundamental cannon of justice, namely, that an officer deciding a case should not base his decision on his personal knowledge otherwise he would be converting himself into a witness without being subjected to cross-examination. In other words, it was emphasised that there was good psychological reason for not applying the provisions of Section 310 Code of Criminal Procedure to cases under Chapter X of the Code because in the event of local inspection by the Presiding Officer he was bound wittingly or unwittingly to draw upon the knowledge derived from his personal observation and inspection. We are unable to accede to this submission. There is nothing inherently wrong in a Magistrate seized of certain proceedings, making spot inspection himself. The principle under lying such procedure is well established and enshrined in legal statutes. Thus, for instance, Order 18, Rule 18 CPC provides that a court may at any stage of the suit inspect any property concerning which any question may arise. There is no illegality ''per se'' in a Presiding Officer making local inspection. The illegality arises when the finding or judgment is based merely on local inspection. Such inspection is permitted precisely for the purposes of properly appreciating the evidence in the case and cannot take the place of evidence itself. Therefore, local inspection made in a case under Chapter X of the Code does not vitiate the proceedings. It is merely the wrong use made of the result of such inspection which vitiates the proceedings. This broad caution was postulated by the Supreme Court in
A Magistrate is certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his cannot be tested by cross-examination and the accused would certainly not be in a position to furnish any explanation in regard to the same. In the absence of such test having been applied and an explanation sought from the accused in regard to the same u/s 342, it is not open to the Judge to incorporate these observations of his in the judgment and base his conclusion on the same.
Thus, in making local inspection a Magistrate should not do anything which would reduce him to the position of a witness. It is really meant for the purpose of appreciating the evidence in the case and can be utilised for the purpose of drawing conclusions from the evidence but it cannot be treated as evidence itself nor can a judgment be founded on it. See Kotappa v. Serappa Sakalathi Rangappa AIR 1955 Mys 131 . In short, the test to be applied is whether the evidence adduced by the parties has entered into the decision-making or the judgment proceeds from non-consideration of the evidence and its real foundation is knowledge derived from local inspection. The judgment should indicate that the evidence on record was an element in its formulation and it was only buttressed by the observations of the Presiding Officer during the site inspection. See
11. On behalf of the applicant reliance was placed on the case of
12. Learned Counsel for the applicant invoked the rule of construction which is expressed in the maxim ''generalia specia libus non derogant'' which means that when there is a conflict between a general and special provision the latter shall prevail. The said principle has been stated in Craies on Statute Law, VII Edition, page 222 in these words:
Whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.
13. But this rule of construction is not of unviersel application. It is subject to the condition that there is nothing in the general provision, express or implied, indicating an intention to the contrary. (See Maxwell on Interpretation of Statutes XI Edition at pages 168-169). Moreover, one of the well-accepted cannons of construction of a Statute requires the Court, as far as possible, to harmonise the different sections of an Act in order to carry out the object of Legislation. Where two co-ordinate sections are apparently inconsistent, an effort must be made to reconcile them- Ebbs v. Baulnois (1875) 10 Chapter A 479-44 LJ Chapter 691-23 WR 820-33 LT 342). In our opinion in this particular case there is no difficulty whatsoever in applying that cannon while considering the two relevant sections of the Code of Criminal Procedure. Section 310 covers the whole held of any inquiry, tiral or other proceedings and confers the power of making local inspection. The provisions of Chapter X of the Code lay down the procedure with regard to proceedings relating to the maintenance of public order and tranquillity and Group''B'' thereof comprised of Sections 133 - 143 deals with public nuisance. But these sections have to be strictly given effect to only so far as they go. They do not exhaust the entire gamut of procedure which may have to be adopted in justly disposing of a case of public nuisance. Neither Section 310 which embodies the general powers contains any proviso nor is there any prohibition in Chapter X which may restrict the generality contained in Section 310. Chapter X is silent on the question as to whether there can be a local inspection by the Presiding Officer. The provisions of this Chapter over-ride and prevail only in so far as they go. Since there is no provision for making of local inspection in Chapter X nor is there any prohibition in this regard nor is Section 310 subject to any exception or proviso, it must have its full operation in the field covered by it. Obedience to Section 310 is possible without disobeying the provisions of Section 133 - 143. Section 139 is not in any manner repugnant to Section 310. The former is an enabling provision which clothes a Magistrate with the additional power to direct local investigation to be made by such person as he thinks fit. These provisions do not collide with each other, they are not mutually exclusive. They represent two circles which may be contiguous and touch each other but do not intersect. In our opinion where there are two provisions of law of a cognate and allied character, it does not follow that there is repugnancy between them. It is our considered view that there is no inconsistency, much less an irreconcilable conflict between the two sets of provisions and Ram Dular''s case (supra) was not correctly decided. We, therefore, over-rule the same and hold that Section 310 must have its full operation without being inhibited by the provisions of Chapter X of the Code.
14. We are also conscious of the limited scope of the present application made u/s 482 Code of Criminal Procedure. The applicant had preferred a revision against the order of the City Magistrate and the said revision was dismissed by the learned IV Addl. Sessions Judge, Etawah by his order dated 4-10-1980. The revisional court came to the conclusion that the case was concluded by a finding of fact based on satisfaction of the City Magistrate with the evidence on record that the building was likely to fall down and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by. The said finding was neither improper nor illegal on the facts of the case and consequently no interference in revision was called for. It is significant that the parties in the lower court never objected to the local inspection by the City Magistrate In fact, no grievance on that score was made even in the application u/s 482 Code of Criminal Procedure which was filed in this Court on 28-10-1980. It appears that this point occurred to the applicant only after he had seen the ruling in Ram Dular''s case (supra) which was decided on 21-4-1980. It is thereafter that the point was canvassed and has since then been pursued with tenacity. As pointed out in Municipal Corporation of Delhi v. Ram Kishan Rohtagi AIR 1983 SC 67:
Section 482 of the present Code is the ad verbatim copy of Section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders exdebito Justitiae in cases where grave and substantial injustice has been done or where the process of the Code has been seriously abused.
We have already held that the findings recorded by the City Magistrate were neither improper nor illegal and the revisional court rightly held that it was not a fit case for interference in revision. Needless to add that powers u/s 482 Code of Criminal Procedure are extraordinary powers and have to be exercised sparingly to prevent abuse of the process of law or otherwise to secure the ends of justice. No such extraordinary ground has been made out in the instant case and hence the petition u/s 482 Code of Criminal Procedure filed by the applicant has no force and is accordingly dismissed.
