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Case Number

Criminal Revn. No. 311 of 1959

Advocates

Dr. Sultan Ahmad and Amin Ahmad
S.N. Sahay and S.S. Asghar Hussain

Judges

K. Sahai, J.

Acts

sub-section (1) of Section 145;
provision in sub-section (1)

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Smart Summary

Structured Summary of the Opinion (Section 145 CrPC)

Factual and Procedural Background

The application before the court was filed by the first party challenging a final order passed in a proceeding under Section 145 of the Code of Criminal Procedure (CrPC). The dispute concerns 58.48 acres of land (equivalent to 93 Bighas 11 Kathas 7 Dhurs). Three parties are involved in the original proceeding; the opinion states the court will refrain from reciting the parties' full claims except where necessary. After hearing both parties, the court concluded the matter should be remanded for fresh disposal.

Legal Issues Presented

Whether the Magistrate acted illegally in appointing a pleader commissioner (instead of, or in addition to, deputing a subordinate magistrate under Section 148 CrPC) to conduct local inquiry and prepare a report.
Whether the pleader commissioner's report could be read or considered by the Magistrate as evidence without being formally proved, particularly in view of the law as it stood before and after Act XXVI of 1955.
Whether a pleader commissioner's report qualifies as a "document" under Section 145 and related amendments, and whether such documents need formal proof before being considered by the Magistrate.
Whether the pleader commissioner's opinion as to which party was in possession of the land is admissible and can be relied upon by the Magistrate.
Whether the learned Magistrate properly considered and weighed the affidavits filed by the parties (including apparent numerical errors in noting how many affidavits were filed for each side) and, relatedly, whether the Magistrate may summarily treat affidavits as "oath against oath" without reasoned consideration.
Whether the learned Magistrate erred in relying upon an apparent misreading/misconstruction of paragraph 19 of the first party's written statement (the word "never" was used where "mere" appears to have been intended), and the effect of that error on findings about agency/possession.

Arguments of the Parties

First party-petitioners (Dr. Sultan Ahmad)

Contended that appointment of a pleader commissioner by the Magistrate was illegal and that the pleader commissioner's report should not have been considered because it was not legally put in evidence by formal proof.
Argued that Section 148 permits only deputation of a subordinate Magistrate (not a pleader commissioner) to make local inquiry under Chapter XII (which includes Section 145).
Maintained that even after Act XXVI of 1955 the report of a pleader commissioner cannot be considered unless it is formally proved, and that such a report is not a "document" within the meaning of Section 145.
Challenged the Magistrate's acceptance of the learned pleader commissioner's opinion regarding possession, asserting that such opinion is not based on the commissioner's personal knowledge.
Argued that the learned Magistrate misread paragraph 19 of the first party's written statement (the word "never" was a mistake for "mere"), and that this misreading led to an improper conclusion about whether Abdul Aziz was an agent or a lessee.
Pointed out that the Magistrate failed to give due consideration to affidavits filed on behalf of the parties and made mistakes in recording how many affidavits were filed for each party.

Second party (Mr. S. N. Sahay)

Submitted that the learned Magistrate decided the case upon the important materials before him and that he considered the affidavits only of those deponents whose affidavits the Magistrate regarded as worth discussing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chulai Mahto v. Surendra Nath Chatterji, ILR 1 Pat 75 : (AIR 1922 Pat 224)	Supports the proposition that, prior to the amendments (pre-Act XXVI of 1955), the report of a pleader commissioner could not be read in evidence without formal proof.	The Court relied on this decision to show that historically a pleader commissioner's report required formal proof before being read as evidence; but the Court then analysed how the 1955 amendments altered the evidentiary regime under Section 145 and the effect on consideration of documents and affidavits.

Court's Reasoning and Analysis

The court's analysis proceeded step-by-step and is summarized as follows, strictly following the reasoning in the opinion:

The court first addressed the contention that appointment of a pleader commissioner was illegal. It observed that while Section 148 permits deputation of a subordinate Magistrate to make a local inquiry and that the report of such a Magistrate may be read in evidence without formal proof, there is nothing to prevent a Magistrate from deputing a pleader commissioner to report on physical features or measurements of the land. Thus the appointment of a pleader commissioner for such purposes was not, in the court's view, illegal.
The court acknowledged the historic rule (supported by the cited precedent) that, before Act XXVI of 1955, a pleader commissioner's report could not be read in evidence without formal proof. However, the court then examined the amendments effected by Act XXVI of 1955 to Section 145 and related sub-sections.
On examining the 1955 amendments, the court concluded that the legislative intent was to make Section 145 proceedings more expeditious. The amendments require parties to "put in" written statements, documents and affidavits, and make oral evidence optional (to be taken only if the Magistrate thinks it necessary). The amended sub-section (4) requires the Magistrate to "peruse the statements, documents and affidavits" and to conclude the inquiry, as far as practicable, within two months of appearance.
From the amendments the court derived two linked conclusions: (a) the Legislature did not contemplate that private documents put in by parties would need formal proof before being considered, because oral evidence has been made optional; and (b) the language of the amended provisions requires the Magistrate to peruse written statements, documents and affidavits without any express requirement that they be formally proved before being considered.
The court therefore held that a document put in by a party in a Section 145 proceeding need not be formally proved before the Magistrate may consider it; and it rejected the specific argument that a pleader commissioner's report is not a "document" (observing a written report is a document).
However, the court distinguished between the pleader commissioner's factual findings about physical features/measurements (which the Magistrate may consider) and the pleader commissioner's opinion as to possession. The court held that the commissioner's opinion on which party was in possession was not based on the commissioner's personal knowledge and therefore could not be taken into consideration.
The court examined specific errors by the learned Magistrate: (a) reliance on paragraph 19 of the first party's written statement to find that Abdul Aziz was not an agent, where paragraph 19 contained the word "never" which, read with paragraph 22, was manifestly a mistake for "mere"; and (b) the Magistrate's failure to consider the affidavits properly, including erroneous statements as to how many affidavits were filed for each party (the Magistrate said only four were filed for the first party when 19 had been filed; and said 18 for the second party when only 10 had been filed). The court found these to be material errors.
The court elaborated on the proper treatment of affidavits under the amended Section 145: although oral evidence is not necessary, affidavits now perform the role of oral testimony and the Magistrate must consider each affidavit and give reasons for accepting or rejecting it. Merely dismissing affidavits as "oath against oath" without reasoned consideration is improper.
Because the learned Magistrate had evidently not considered the affidavits and had made mistakes even about their numbers, his judgment was vitiated. Consequently, the court allowed the application, set aside the Magistrate's judgment and remanded the case for fresh disposal in accordance with law and the court's observations.
As to directions on remand, the court ordered the case to be placed before another Magistrate in accordance with the Sessions Judge's directions; the Magistrate before whom the case is placed is to dispose of the case on the materials already on record and is not to allow any party to put in further materials.

Holding and Implications

Core Ruling: Application allowed; the judgment of the learned Magistrate is set aside and the case is remanded for fresh disposal.

Consequences and immediate effects as directed in the opinion:

The learned Magistrate's judgment was set aside because it was vitiated by material errors (misreading of the written statement and non-consideration/miscounting of affidavits).
The case is remanded to be placed for disposal before another Magistrate (in accordance with directions of the Sessions Judge).
The Magistrate before whom the case is placed must proceed to dispose of it on the materials already on record and is not to permit any party to file further materials.
The Magistrate must properly peruse and consider the written statements, documents and affidavits filed; where affidavits are relied upon, the Magistrate should consider each affidavit and give reasons for accepting or rejecting them rather than dismissing them as "oath against oath."

The opinion does not assert or announce any broader binding precedent beyond the application of Section 145 (as amended by Act XXVI of 1955) to the particular procedural and evidentiary errors identified; it confines relief to setting aside the specific Magistrate's judgment and remanding the matter for fresh consideration in accordance with the Court's direction.

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Shah Jamilur Rahman And Others v. Abdul Aziz And Others Opposite Party.

1. This application by the first party is directed against a final order passed in a proceeding under Section 145 of the Cr PC in respect of 58.48 acres, equivalent to 93 Bighas 11 kathas 7 dhurs of land. I will refrain from mentioning the respective claims of the three parties involved in this case except for such part of their claim as becomes necessary to mention. I will also refrain from referring to the merits of the parties' cases because I feel, after hearing both the parties, that this is a case which should be remanded.

2. Appearing on behalf of the first party-petitioners, the first point which Dr. Sultan Ahmad has taken is that the appointment of a pleader commissioner in this case by the Magistrate was illegal and that, in any case, the pleader commissioner's report should not have been considered inasmuch as it was not legally put in evidence on being formally proved in accordance with law. In my judgment there is no substance in this point. Dr. Sultan Anmad has drawn my attention to Section 148 of the Cr PC which provides that the District Magistrate or the Sub-divisional Magistrate may depute any magistrate Sub-ordinate to him to make a local enquiry in a case under Chapter XII (which includes Sec. 145) and that the report of the Magistrate so deputed would be read as evidence in the case.

3. He has contended that, there being no provision for appointment of a pleader commissioner, the only person who can be deputed to hold local enquiry is a Sub-ordinate Magistrate under Sec. 148. It seems to me, however, that this contention is misconceived, if a Magistrate feels that it is necessary to get some one to report upon the physical features of the land in dispute between the parties or the measurements of those lands, I do not see why he cannot depute a pleader commissioner for the purpose. The only difference is that the report of a Magistrate deputed under Sec. 148 can be read in evidence without formal proof whereas the report of a pleader commissioner could not, under the Code of Criminal Procedure as it stood before the amendments made by Act XXVI of 1955, be read in evidence without such proof. This is supported by the decision of a Division Bench of this Court in Chulai Mahto v. Surendra Nath Chatterji, ILR 1 Pat 75 : (AIR 1922 Pat 224).

4. Dr. Sultan Ahmad has argued that even under Sec. 145, as it stands after the amendments made by Act XXVI of 1955, the report of a pleader commissioner cannot be considered by the Magistrate unless and until it is put in evidence by giving formal proof. He has also argued that a report of a pleader commissioner is not a document within the meaning of Sec. 145 at all. There seems to be no substance in either of these arguments. The only provision under Sec. 145, as it stood before the last amendment, for consideration of materials was made in sub-sec. (4), which laid down that the Magistrate should “peruse the statements so put in, hear the parties, receive all such evidence as may be produced 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 possession of the said subject”.

5. Under Act XXVI of 1955, the following words have been added to sub-section (1) of Section 145; “and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.” Sub-section (4), as amended, provides that the Magistrate should “peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.”

6. The first point that is absolutely clear from the amendments made is that the intention of the legislature was that a proceeding under Sec. 145 should be concluded as expeditiously as possible. This is the reason why the proceeding is to be concluded, if possible, within two months from the date of appearance of the parties and this is also the reason why the taking of oral evidence, with the delays consequent upon taking of such evidence, has been done away with unless, as provided in the first proviso to sub-sec. (4), the Magistrate himself thinks that he should summon and examine any person whose affidavit has been put in.

7. As the taking of oral evidence even on the question of possession has become optional, the Legislature could not have possibly contemplated that all private documents should be formally proved before the Court. This also appears to follow from the amendments. There are two points which support this conclusion. Firstly, the provision in sub-section (1) is that the parties are to ‘put in’ their written statements and also to ‘put in’ such documents as they rely upon. It is only with respect to affidavits that sub-sec. (1) lays down that the parties may be called upon to adduce the evidence of persons upon whom they rely by putting in their affidavits.

8. Secondly, the provision in sub-sec. (4) is that the Magistrate has to peruse the written statement, documents and affidavits. There is nothing in this sub-section to show that the Magistrate can only peruse a document put in by a party if it is formally proved, nor is there anything in it to show that the document must be put in evidence by getting it formally proved.

9. It seems to me to be manifest, therefore, that a document put in by a party in a case under Sec. 145 need not be formally proved before it is considered by the Magistrate. The argument of Dr. Sultan Ahmad that a report is not a document is obviously wrong, because I do not see how a written report can be described otherwise.

10. Another point which Dr. Sultan Ahmad has raised is that the learned Magistrate was wrong in taking into consideration the opinion of the pleader commissioner as to the possession of the parties. This contention appears to me to be well-founded. While the report of the pleader Commissioner relating to the physical features of the lands and/or measurements can well be taken into consideration by a Magistrate, his opinion as to the possession of any party is not based upon his personal knowledge and, that being so, cannot be taken into consideration.

11. The first party's case is that Abdul Aziz of the second party was in possession of the disputed lands as his agent up to a few years before the date on which the proceeding was started. The learned Magistrate has observed in this connection:

“That Abdul Aziz continued in possession not as agent but as lessee, is also proved from the fact that in the show cause petition filed by the first party in Sec. 144 proceeding out of which the present proceeding sprang up it was clearly stated by the first party in para 19 of the written statement that Abdul Aziz and others 2nd party were never agent and servants of the 2nd party”.

Dr. Sultan Ahmad has urged that, while the learned Magistrate has correctly quoted paragraph 19, he has failed to notice that the word ‘never’ in that paragraph was a mistake for the word ‘mere’ and that this would have been clear to him if he had only perused paragraph 22 of the same written statement. I have looked into paragraphs 19 and 22 of the written statement. In paragraph 19, the first party have stated that the claim of the second and third parties was false and frivolous and that as a matter of fact they were never the tenants of the lands in question. Thereafter, the sentence is, “Indeed they were never agents and servants of the first party”. Paragraph 22 is as follows:

“That is a settled principle of law that the possession of an agent or servant, if any, is possession of the master and as such also the 1st party remained in continuous possession”.

Reading the two paragraphs together, it is obvious that Dr. Sultan Ahmad's argument is correct that the word ‘never’ in paragraph 19 is a mistake for the word ‘mere’. The learned Magistrate has wrongly relied upon this paragraph as Slowing that the first party admitted that Abdul Aziz and others were not their agents and servants.

12. The last point which Dr. Sultan Ahmad has urged is that the learned Magistrate has attached no importance to the affidavits filed on behalf of the parties and has, in fact, made mistakes even in mentioning the number of persons who swore affidavits on behalf of each party. This is correct. Although the affidavits of 19 persons were filed on behalf of the first party, the learned Magistrate has mentioned in his judgment that affidavits of only four persons were filed on their behalf. Again, although the affidavits of ten persons were filed on behalf of the second party the learned Magistrate has mentioned that those of 18 persons were filed on their behalf. In fact, the learned Magistrate has considered the evidence of five witnesses on behalf of the first party though he has said that the affidavits of only four persons were filed on their behalf.

13. Appearing on behalf of the second party, Mr. S.N Sahay has urged that the learned Magistrate has decided the case upon the important materials before him and he has considered the affidavits of only those persons whose affidavits he considered to be worth discussing. I do find that the learned Magistrate has considered the documentary evidence but it is obvious that he has not attached any importance to the affidavits at all. Had he done so, he could not have made mistakes in mentioning the number of persons whose affidavits were filed on behalf of each party.

14. In view of the latest amendment of Sec. 145, it is not necessary to examine witnesses in Court. The learned Magistrate is entirely wrong, however, in thinking that it is not necessary even to consider the affidavits which now take the place of oral evidence given by witnesses. Sometimes, I find that Magistrate dispose of all the affidavits on behalf of both the parties merely by saying that they are oath against oath even that is improper. The Magistrate should consider the affidavit of each deponent and should give his reasons for accepting or not accepting it.

15. Even when witnesses are examined and cross-examined in Court, it is possible for a trial Court to say that there is oath against oath. It should be obvious that would be hardly a consideration of the oral evidence. The same rule should apply in the case of affidavits. In my judgment the learned Magistrate's judgment is vitiated for non-consideration of all the affidavits filed on behalf of the parties. He was obviously not even aware of the number of affidavits filed on behalf of each party.

16. In view of non-consideration of the affidavits, I allow the application, set aside the judgment of the learned Magistrate and remand the case for fresh disposal in accordance with law and in the light of the observation which I have made above. The case will now be placed for disposal before another Magistrate in accordance with the directions of the Sessions Judge. The Magistrate before whom this case is placed will proceed to dispose of it on the materials which are already on record.

17. He will not allow any party to put in further materials.

BD/H.G.P

18. Case remanded.

Shah Jamilur Rahman And Others v. Abdul Aziz And Others Opposite Party.

Structured Summary of the Opinion (Section 145 CrPC)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

First party-petitioners (Dr. Sultan Ahmad)

Second party (Mr. S. N. Sahay)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Shah Jamilur Rahman And Others v. Abdul Aziz And Others Opposite Party.

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