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 Tirkha and Another Vs.
Nanak and Another, Iqbal Ahmad, J. held that a local inspection by a Magistrate in proceedings u/s 133 Code of Criminal Procedure was
permissible u/s 539-B for the purpose of properly appreciating the evidence in the case but it was not open to the Magistrate to rest his decision
merely on the local inspection made by him. The learned Judge followed the earlier case of Ismail alias Chotiya v. Bunda AIR 1922 All 265 . The
same opinion was also endorsed in Shib Singh Vs. Sridhar and Others, in which Brij Mohan Lal, J. observed that Section 539B permitted a
Presiding Officer to make local inspection. In Basant Lal v. Hira Lal 1970 AWR 620 which was a case u/s 133 Code of Criminal Procedure it
was ruled that local inspection could be made by a Magistrate for the purpose of understanding the case but the inspection must be done after
giving notice to the parties, in their presence, or in the presence of their counsel. The same proposition with regard to cases u/s 133 Code of
Criminal Procedure was affirmed in Devi Prasad v. State of U.P. 1973 AWR 355. Numerous decisions of other High Courts follow same line of
approach. In Lal Behari Saha v. Bejoy Shankar Sikdar 1906 CriLJ 193 it was held by a Division Bench of the Calcutta High Court that in
proceedings u/s 145 Code of Criminal Procedure local inspection made by a Magistrate was legal but the judgment could not be founded on it and
local inspection could be used only for the purpose of better appreciating the evidence. In the case reported in Kalisaday Ghoshat v. Siddheswar
Banerjee AIR 1919 Cal 153 which arose out of proceedings u/s 133 Code of Criminal Procedure another Division Bench of the Calcutta High
Court expressed the opinion not that the local inepection could not be made by a Magistrate but that his order could not be based on that instead
of the evidence adduced in the case. In Musammat Ram Ratan Kuar and Others Vs. Tarak Nath Bhattacharji and Others, it was observed;
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 Abdul Hamid Vs. Hasan Raja and Others, it was ruled that Section 145 Code of Criminal Procedure expressly authorised local inquiry to be
made only by a Magistrate subordinate to the Magistrate before whom the case was pending or by that Magistrate himself. It was also ruled that it
was better to have such investigation made by some other person but there was nothing to prevent the Presiding Magistrate from himself making
the investigation by way of"" local inquiry. In Batakrushna Naik Vs. Khageswar Kunda and Others, Misra, J. observed that in a proceeding u/s 145
Code of Criminal Procedure a Magistrate was entitled to make local inspection but he should avoid making enquiries from the people on the spot
as to the truth of the matter in dispute. Thus, there remains no manner of doubt that the provisions of Section 310 Code of Criminal Procedure can
be pressed into service in proceedings other than those relating to any offence.
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 Pritam Singh and Another Vs. The State of Punjab, in these word:
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
Ugamsingh and Mishrimal Vs. Kesrimal and Others, . In the instant case the Plaintiff filed an application u/s 133 Code of Criminal Procedure on 1-
6-1978. The City Magistrate ordered a preliminary inquiry by way of local investigation to be made by the Tahsildar, Etawah who submitted his
report dated 25-7-1978 fully supporting the allegations made in the complaint. Thereafter the contesting parties filed their written statements and
evidence was adduced in the case. The complainant besides examining himself also examined an engineer who being an expert witness stated that
the building in question was in a dangerous condition and was likely to fall down. Arguments of the parties were heard and on 5-8-1979 the
learned City Magistrate made a local inspection after giving notice to both parties and passed the order dated 13-8-1979 directing demolition of
the building. The said order elaborately discusses the evidence adduced by the parties and it is quite clear from the sequence of events that the
decision rendered by the City Magistrate is based on appreciation of evidence and not on information appears of better evaluation of evidence. It
does not, therefore, vitiate the impugned order passed u/s 133 Code of Criminal Procedure nor has the procedure followed by the City Magistrate
in any manner prejudiced the present applicant who was the constesting opposite party in the court below.
11. On behalf of the applicant reliance was placed on the case of Kadhori Vs. King-Emperor, in which it was held that a Magistrate had no power
u/s 72 of the United Provinces Village Panchayat Act, 1920 to make local inquiry into cases relating to public nuisance and that he should in such
cases follow the procedure laid down by Sections 133 - 143 Code of Criminal Procedure. The present case is clearly distinguishable. In that case
the Presiding Officer did not himself make local inspection but merely directed certain panches to make local investigation and submit a report as to
whether a certain shop had been newly built. Moreover, u/s 72 of the United Provinces Village Panchayat Act, 1920 (United Provinces Act No.
VI of 1920) a Magistrate was competent to direct a previous local investigation to be made by a Panchayat u/s 202 Code of Criminal Procedure
1898 which provision only uses the words ''complaint of an offence'' and not ''other proceedings'' which occur in Section 310 Code of Criminal
Procedure.
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.
