An Executive Magistrate has the power to hold a local inquiry under Section 148 of the CrPC, even if he is not a District Magistrate or a Sub Divisional Magistrate. There is no scope for overlapping the concept of local inquiry by a delegated authority as envisaged under Section 148 of the CrPC, and local inspection to be made by the trial Judge or Magistrate, as the case may be, as provided under Section 310 of the CrPC.

JUDGMENT :

S. Chatterji, J. - A short but interesting point has arisen in the present case. The present Criminal Revision u/s 397 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') read with Section 401 of the Code challenges the order dated 8-9-1994 passed by the Executive Magistrate, Cuttack in Crl. Misc. Case No. 473 of 1994 u/s 147 of the Code.

2. By the impugned order the learned Magistrate has recorded that the second party members had filed a petition u/s 148, CrPC with a prayer to make local inspection of the alleged sweeper's passage and to stay the hearing of the case till then. The first party member filed objection on the ground that Section 148 of the Code deals with local inquiry and the Court has no power to depute a subordinate Magistrate to hold inquiry. Recording the contentions of both the parties, the learned Executive Magistrate has held that he does not have power himself not being a District Magistrate or a Sub Divisional Magistrate to depute a subordinate Magistrate to hold local inquiry. However, he has observed that since local inspection cannot take the place of legal evidence, the question of making local inspection would be considered after receipt of evidence of both the parties or, at any stage, if it is felt absolutely necessary by the Court for a just and fair decision. The petition filed u/s 148 of the Code was accordingly disposed of.

3. Being aggrieved by the said decision the present criminal revision has been filed. The learned Single Judge by order dated 5-12-1994 found inter alia that if plain and simple meaning of Section 145 or 146 or 147 of the Code is accepted, the Executive Magistrate cannot exercise the power for holding local inquiry. He has referred to a decision reported in (1994) 7 OCR 629 Krishna Chandra Patnaik v. Arati Subudhi and Anr. and has found that the view expressed is contrary to the decision reported in Sri Narain Das Gupta and Others Vs. Sri Shyam Sundar Gupta. In Krishna Chandra Patnaik's case (supra) it was observed that procedure prescribed u/s 310 of the Coda cannot be applied in a proceeding u/s 145 in view of specific provision in Section 148 of the Code. In Narain Das Gupta's case (supra) it was observed that "inquiry" as appearing in Section 148 and "other proceedings" as appearing in Section 310 may overlap each other and it would not be correct to say that in a proceeding u/s 145, Section 310 of the Code would have no application. It was observed that two provisions operate in two different fields and reference was made in the said case to an earlier decision reported in 1972 (2) CWR 1998 Batakrishna Naik v. Khageswar Kunda and Ors., where a learned Single Judge disagreed with the view of another learned Single Judge. To avoid complications the matter was referred to a Division Bench for resolving the question whether in a proceeding pending before an Executive Magistrate, there is any scope for local inquiry in terms of Section 148 of the Code.

4. With this background the above matter has been placed before us for hearing. Patiently we have heard Mr. B. Pal, learned counsel for the petitioners, Mr. A.K. Mishra for the first party No. 1 and the learned Addl. Standing Counsel for the State for the purpose of answering the question involved in the present case. We find inter alia that Section 148 of the Code clearly lays down that:

"(1) Whenever a local inquiry is necessary for the purposes of Section 145, Section 146, or Section 147, a District Magistrate or Sub-divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.

(2) The report of the person so deputed may be read as evidence in the case.

(3) When any cost have been incurred by any party to a proceeding u/s 145, Section 146 or Section 147, the Magistrate passing a d