J. DAS, J, J.

( 1 ) IN this Miscellaneous Case the petitioners challenge the order dated 9-12-88 passed by the Executive Magistrate, Paralakhemundi and the order dated 6-1-1989 passed by the Sessions Judge, Ganjam, Berhampur and submit that the orders are without jurisdiction and there is miscarriage of justice and hence those orders should be quashed.

( 2 ) ON perusal of the orders dated 9-12-88 it appears that the said order is not at all tenable. It appears that the learned Executive magistrate without taking any evidence in the case proceeded to the spot and visited the house in question and on the basis of the knowledge acquired by him on such visit, he proceeded to dispose of the proceeding under Section 145 of the Criminal Procedure Code and ultimately passed the order that the subject matter of the dispute is attached under Section 146 of the Criminal Procedure Code and the Revenue Inspector, Machumara is appointed as the receiver and the parties are directed to approach the competent Civil Court for determination of their rights. The learned Executive magistrate also gave further direction that the attachment is to continue till the rights of the parties are decided by the Competent Court.

( 3 ) THE approach of the Executive Magistrate is not at all legal and it is also unwarranted. Usually a local inspection is done after the evidence is closed and if the court feels that for the purpose of appreciation of the evidence and to know the exact topography etc. , the local inspection may be necessary. In such a case the court after local inspection shall prepare a memorandum of local inspection and serve the copies to both the sides and afford them the opportunity to file their objections. If any, and the memorandum is to be finalised after hearing and consideration of the objections and thereafter the magistrate may rely on such memorandum of local inspection for local inspection for appreciation of the evidence already on record.

( 4 ) IN this case there is no evidence and before recording of evidence, the Executive magistrate proceeded to the house in question and held local inspection. After local inspection the magistrate did not prepare any memorandum of inspection and did not serve any copy of such memorandum of inspection on the parties enabling them to file their objections. The learned Executive magistrate, however, utilised his personal know ledge gathered by local inspection in disposing of the case, although such a procedure is quite illegal and unwarranted. It may be mentioned here that if the Magistrate acquired some knowledge personally in course of a proceeding, he cannot utilise his knowledge for disposal of the case, but if he feels that such knowledge may be necessary for effective disposal of the case, he may transfer the case from his file to another magistrate and testify to what he has acquired by local inspection and then that evidence of the Magistrate can be accepted as materials on record. In this case, however, the learned Executive Magistrate has not proceeded with the case in accordance with the law and he has utilised his personal knowledge in the disposal of the case, although it is neither warranted in law nor legal nor within the jurisdiction of the learned Executive Magistrate Hence the order dated 9-12-1988 is vitiated and must be set aside.

( 5 ) AGAINST the order dated 9-12-1988, a revision petition was filed before the Sessions judge, Ganjam, Berhampur and that revision was registered and numbered as Criminal Revision No. 172 of 1988. The learned Sessions Judge vide Order No. 5 dated 6-1-1989 observed in paragraph-3 that: According to Mr. Sabat for the petitioners the learned magistrate having not given reasons for his findings as to imminent breach of peace, such conclusion of the magistrate is not sustainable. Even accepting such contention to be correct, the ultimate conclusion of the learned magistrate in attaching the subject of dispute is not liable to be disturbed because