BALKISHORE MISSER Vs. PHULENA AHIR

JUDGEMENT

(1.) This application in revision is directed against the order of Mr. S. S. Ahmad, Magistrate, 1st class, Siwan, dated 8-7-1957, in a proceeding under Section 145 of the Code of Criminal Procedure, by which he declared the second party to be in possession of the disputed land and forbade all interference with their possession until evicted therefrom in due course of law.

(2.) The facts necessary for the disposal of this application may shortly be stated. The proceeding under Section 145 was initiated before the recent amendment of this section. By his order dated 29-V-1955, Mr. R K. P. Sinha, Magistrate, 1st class, who heard that proceeding, held that of the plots in dispute, plot No. 1798 was in possession of opposite party No. 1 and the remainder in possession of the first party. Both the parties moved the Sessions Judge, Chapra, against that order. The petitioner's application was registered as, Criminal Revision No. 161 of 1955 and that of opposite party Nos. 1 and 3 as Criminal Revision 'No. 156 of 1955. Both these petitions were heard and disposed of by the Additional Sessions Judge, Chapra, who by his order dated 26-11-1956, dismissed Criminal Revision No. 156 of 1955 and in Criminal Revision No. 161 of 1955 he made a reference to the High Court for setting aside the order of the Magistrate with respect to plot No. 1798. The reference was admitted by the High Court and was registered as Criminal Reference No. 130 of 1955. The opposite party came up to the High Court in revision against the order of the learned Magistrate, and this was also admitted by the High Court and numbered as Criminal Revision 79 of 1956. Both the reference and the revision were heard together, and Imam J, rejected the reference, allowed the revision, set aside the order of the learned Magistrate and remanded the case "for hearing in accordance with law; that is to say, the learned Magistrate must serve due notice on all such persons as he deems necessary and also on the spot as required by Section 145 (3) of the Code of Criminal Procedure." A further direction was given for hearing of the proceeding by another Magistrate of competent jurisdiction. After the remand the proceeding was heard by Mr. S.S. Ahmad, Magistrate, 1st Class, who by his order dated 8-7-1957, maintained that the second party was in possession of the disputed land. In disposing of the case the learned Magistrate also allowed the parties to file affidavits of witnesses in lieu of oral evidence. I may mention that under the amended Section 145 evidence may be given by means of affidavit also. In course of his judgment he referred to the evidence given on affidavit and also to the evidence recorded previously by his predecessor-in-office. Now, the petitioner who was one of the members of the first party in the proceeding has come up in revision against that order. The contention of the learned counsel is that since the proceeding was initiated prior to the amendment, the procedure then obtaining should have been followed, and the adoption of a composite procedure, as in this case, was wholly illegal, and, therefore, the order of the learned Magistrate was vitiated and liable to be set aside. It is true that the amended Section 145 does not govern the proceedings initiated prior to the amendment. It has no retrospective operation. It applies to proceedings taken after the amendment. Therefore, all proceedings under Section 145 instituted prior to its amendment must be decided in accordance with the procedure then in force and not according to the amended procedure. The contention, however, has no foundation in fact. It is wholly inaccurate to say that the Magistrate tried and decided the proceeding according to the new procedure. He did not reject, nor did he leave out of consideration, the evidence recorded previously by his predecessor prior to the remand. That evidence formed part of the record and was duly considered by the Magistrate. After remand, it appears that without direction from, and without any specific order of the Court, the parties also filed affidavits of their respective witnesses. None raised any objections of their respective witnesses. None raised any objection to the admissibility of the affidavits. The petitioner also filed affidavits and raised no objection whatsoever. When they themselves filed affidavits, they cannot now turn round and complain that reference to the affidavits was wholly illegal. There was no obligation on their part to file affidavits of witnesses, and if they did so suo motu without any compulsion from the court, they cannot now take up this point in revision, especially when the previous evidence had not been discarded. It is not their case that they offered to examine witnesses and adduce evidence and the court declined to examine them. In my opinion, it is not open to the parties now to object to the evidence by means of affidavits when they did not raise any such objection in the court below. In this connection I may refer to a Bench decision of this court in Shibnarayan Das v. Satyadeo Prasad, AIR 1943 Pat 44. It has been laid down there that the revisional powers of the High Court under Section 439 are discretionary and are exercised for the ends of justice. Where a party allows the order initiating the proceeding under Section 145 to go unchallenged by not coming up in revision against it and chooses to wait find take the chance of judgment in his favour, he cannot in revision against the final order be heard to complain of excess of jurisdiction in tbe initiation of proceeding by the Magistrate under Section 145 when the final order has gone against him. The present case is really even stronger. Not only did the petitioner not challenge the acceptance by the court of affidavits of witnesses, he actively participated in it and himself filed un-solicitedly affidavits of his witnesses. Now, I think it is too late in the day for him to impugn the propriety of the procedure. Further, the irregularity complained of related to procedure only, and it is not shown that any prejudice accrued to the petitioner. As observed by their Lordships of the Calcutta High Court in C. S. Joseph v. Emperor, 41 Cal WN 251, when a convicted person appears in an appellate or revisional Court and asks for interference on the ground that he was prejudiced by the procedure, an important point always is whether the objection was taken at the earliest opportunity. If the petitioner felt aggrieved by that procedure, it was open to him to come to this court in revision against that order. He did nothing of the sort. This objection docs not go to the root of the jurisdiction of the Magistrate, nor does this objection relate to the legality of the proceeding. The position might have been different had the Magistrate ignored the previous evidence and adopted a new procedure altogether. At best, it was a case of wrong admission of evidence. Therefore, when this objection does not go to the root of the jurisdiction of the Court and concerns only the propriety or otherwise of a particular procedure, the petitioner cannot be permitted to raise it for the first lime in revision in this Court in absence of any prejudice to him. Learned counsel fur the petitioner referred to the decisions of the Calcutta High Court in Krishna Kamini v. Abdul Jubbar, ILR 30 Cal 155 (FB), and in Manmotha Nath v. Ganga Gir, 20 Cal WN 978: (AIR 1917 Cal 173). They have no application to the facts of the present case and are distinguishable. In my opinion, this contention has no force and must be overruled.

(3.) On merits also I find that there is amply evidence to support the conclusion of the learned Magistrate, and the order is, therefore, not assailable on any ground.