Mukerji, J. -
(1.) I have had the advantage of reading the opinion of my learned brother James and I am in agreement with the conclusion arrived at by him.
(2.) The question which calls for our determination may be stated in the terms in which it has been stated by my learned brother, namely:
"Whether the order of a Magistrate under Section 145(4), Criminal P. C. which does not give any reasons for the order can or cannot be upheld because the learned Magistrate chose to make the order in Form XXII or Schedule V appended to the Code of Criminal Procedure?" Section 145(4) of the Code of Criminal Procedure is in these terms:
"The Magistrate shall then, without refer-ence to the merits of the claims of any of such parties to a right to possess the subject of dis-pute, peruse the statement so put in, hear the parties, receive all such evidence as may be pro-duced by them respectively, consider the effect of such evidence, take such further evidence if any as he thinks necessary, and, If possible, decide whether any and which of the parties was at the date of the order before mentioned in such pos-session of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dis-possessed as if he had been in possession at such date: Provided also, that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section." From the afore-quoted sub-section of Section 145 it is , clear that the Magistrate is enjoined to decide the question as to which party to the dispute was in possession of the subject-matter of such dispute. The decision has to be a judicial decision after taking evidence and after considering that evidence. It is also clear that parties have a right to be heard at these proceedings before the Magistrate's decision is given; so that all the elements, which one finds preceding a judicial decision, have to be employed or gone through before the Magistrate can make a decision in regard to the possession of a party under this sub-section. The question, which therefore arises, is whether the Magistrate should while making the order, merely give his decision or whether the Magistrate should give reasons for arriving at his decision. Normally all decisions that are given by courts of law give reasons for those decisions. In the judicial sphere reasons have always formed an integral part of the decision in a broad sense. A bald decision unsupported by any reasons has not really been countenanced or recognised as a judicial decision. 2A. The Code of Criminal Procedure has nowhere denned an order, nor has it laid down the requisites of an 'order' in the same manner as it has laid down the requisites of a valid judgment. It has been argued that there is a distinc- tion between an 'order' and a 'judgment', and that the distinction lies in the fact that in the case of a judgment it is necessary to give reasons for the decision, while in the case of an order it is not necessary to give the reasons. In my opinion there is no justification in the Code of Criminal Procedure for such a broad proposition, for it is clear from some of the sections of the Code itself that there is special injunction to give reasons for some of the orders that are made under that Code. It has been suggested that those sections of the Code which specifically enjoin the giving of reasons for the orders are the only orders in respect of which it is necessary to give reasons and that in respect of those orders in respect of which the Code does not require the reasons to be given no reasons need be given. I am again unable to accept this broad proposition for the reason that laying down such a broad proposition would run contrary to well established judicial principles of deciding matters & making orders in respect of such matters. 'Orders' are made in respect of a vast multitude of con-tingencies and there are often occasions when the order itself is made in respect of such a mat-ter as requires no reasons in support of it. To take a very simple illustration an order directing a case to be fixed for hearing for at particular date obviously needs no reasons, but there are orders which do require reasons for there are quite a large number of orders which vitally affect the rights of the parties, and not only that but those orders can be made the subject of scrutiny in a higher court. Orders that are made under Section 145(4) of the Code of Criminal Procedure determine vital rights of contesting parties and are often made the subject-matter of at revision to the High Court. The High Court under its powers of revision has to scrutinise the order and the High Court has power, while scrutinising that order, to exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 of the Code. Under Section 435, Criminal P. C. the High Court is enjoined to satisfy itself
"as to the correctness, legality or propriety of any finding, sentence or order recorded or passed....." The question naturally arises how can the High Court satisfy itself as to the propriety of the order or the correctness of the order if the order does not disclose the reasons for making that order. It was suggested at the Bar 'that the High Court could do so by itself examining the record of the proceedings. In some cases it may be possible for the High Court to satisfy itself about) the propriety of a finding or the correctness of a finding by examining the record, but often there are cases in which it may not be possible to do so, for there may be reasons which do not appear on the face of the record which may have impelled the Magistrate to make the order that he did or to take the position that he took under Sub-section (4) of Section 145, Criminal P. C. in respect of a certain dispute. I am, therefore, clearly of the opinion that, if for no other reason, for this reason alone that orders made under Section 145 are subject to scrutiny by the High Court and that scrutiny can only toe properly made if the order under scrutiny discolses the reasons for the order, the order must contain the reasons.
(3.) The view expressed by my learned brother Desai in the case of -- 'Bharosa v. State', 1951 All WR HC 507 (A), which is contrary to the view that I hold, appears to me to be mainly based on the fact that the Code of Criminal Procedure in Schedule V provides a form (Form XXII) for orders to be made under Section 145. The reasoning of my learned brother Desai appears to be that if the Magistrate makes his order in the appropriate form then his order must be taken to be a valid order in view of the provisions of Section 555 of the Code of Criminal Procedure. I regret this reasoning of my learned brother Desai does not appeal to me and I shall presently give my own reasons for taking a different view. Form No. XXII of Schedule V is in these words:
"It appears to me, on the grounds duly recorded, that a dispute, likely to induce a breach of the peace, existed between (.....) concerning certain (.....) situate within the local limits of my jurisdiction, all the said parties were called upon to give in a written statement! of their respective claims as to the fact of actual possession of the said (the subject of dispute), and being satisfied by due inquiry had thereupon without reference to the merits of the claim of either of the said parties to the legal right of possession, that the claim of actual possession by the said (name or description) is true; I do decide and declare that he is (or they are) in possession of the said (the subject of dispute), and entitled to retain such possession until ousted by the due cpurse of law, and do strictly forbid any disturbance of his (or their) possession in the meantime....." This form is, in my opinion, a form in which the declaration which is contemplated by Section 145 of the Code is to be made and not for making the decision itself. The form makes no reference to Sub-section (4) of Section 145. Further, there is nothing in Sub-section (4) of Section 145 which calls for a declaration to be made, while the form itself, as would be seen deals with a declaration that the Magistrate makes in respect of the subject-matter of the dispute. Sub-section (6) of Section 145 states this:
"If the Magistrate decides that one of the parties was (or should under the first proviso to sub-section (4) be treated as being) in such possession of the said subject, he shall issue an order declaring such party to b& entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction (and when he proceeds under the first proviso to Sub-section (4), may restore to possession the party forcibly and Wrongfully dispossessed)". To my mind, the declaration which is to be given in Form XXII is in respect of the afore-quoted Sub-section (6) and not Sub-section (4) of Section 145, Criminal P. C.;