Magistrate's personal inspection of spot for proper appreciation of evidence on record does not vitiate order passed under Sections 133/138 of the Code.

A.P.CHOWDHRI, J.

1. The sole significant question arising for our consideration in this petition is whether an order passed by a Magistrate under Ss.133/138 of the Code of Criminal Procedure (hereinafter referred as the Code) is vitiated if he personally inspects the spot for a proper appreciation of the evidence on record.

2. Briefly stated, the factual background is that the petitioners made an application to the Sub-Divisional Magistrate, Jalandhar, under S. 133 of the Code against the respondents stating that the drain water of their house had been flowing since times immemorial from the Eastern side towards the Western side after passing through the drain in the street between the house of Balasa Ram and Jogi Ram on one side and Kartara Ram and Joginder respondents on the other side. The respondents had obstructed the flow of water by blocking the street by making a bandh at the Southern end resulting in nuisance to the residents of the entire village. The learned Magistrate passed a conditional order on 15/02/1983, directing the respondents to remove the obstruction within a specified period and to appear in Court and show cause why the order be not made absolute. The respondents filed a written statement denying that they had obstructed the flow of the sullage water and rain water of the drain. Both the parties produced their evidence. For appreciation of the same, the learned Magistrate inspected the spot in the presence of both the parties. Thereafter he made the conditional order absolute on 28/02/1984 (Copy Annexure P-1), The respondents filed a revision against the order of the Magistrate. The same was allowed by the learned Additional Sessions Judge Jalandhar, by order dated 23/01/1988 (copy Annexure P-2). Relying on Kishori Lal V/s. Babu Saini, 1985 (1) CLR 109, it was held that the order passed by the Magistrate was vitiated as he had carried out a spot inspection which was illegal. The petitioners filed the present petition under S.482 of the Code quashing the order passed by the learned Additional Sessions Judge. The petition came up for hearing before one of us (Harbans Singh Rai, J.). The correctness of the view in Kishori Lals case (supra) as well as Ram Dular V/s. State of U.P., 1980 ALJ 570, which was followed in Kishori Lals case, was doubted, and having regard to the importance of the question, reference was made to a larger Bench. This is how the matter has been placed before us.

3. Mr. Khanna, learned counsel for the petitioners, contended that power to inspect the spot in order to appreciate the evidence on record must be read in provisions of Ss. 133 and 138 of the Code, especially because provision had been made in S. 139 expressly empowering the Magistrate to direct local investigation to be made by a person appointed by him. If local investigation could be made by person appointed by the Magistrate, it would be illogical to hold that the entire proceedings would be vitiated if the Magistrate himself carried out the inspection. Counsel also submitted that inspection of the spot became necessary as there were conflicting reports on a question of fact on the record. While the SHO had reported the flow of water from East to the West, the DDPO had reported that the flow was from West to the East. It was also pointed out that the inspection was carried out in the presence of both the parties and it was, therefore, open to the parties and their counsel to draw pointed attention of the learned Magistrate to anything considered material in connection with the decision of the case. There was thus no question of any prejudice to either party.

4. The contention of the learned counsel for the respondents, on the other hand, is that Ram Dulars case (supra) had been consistently followed in a large number of Single Bench decisions of this Court over a long period. Reference was made to Kishori Lals case (supra), Ishar Singh V/s. Varinder Kaur, 1966 (2) CLR 344, Nihal Singh V/s. Daya Nant, 1989 (2) CLR 1