This is a reference under Section 438, Criminal Procedure Code by the learned Sessions Judge, Visakapatnam recommending the question of the order passed by the Sub-Divisional Magistrate, Narsipatnam in M.P. No. 91 of 1972 and M.P. No. 102/72.
2. One P. Konda, who will hereinafter be referred to as the petitioner, submitted a petition under Section 107, Criminal Procedure code against P. Appanna and four others, who will hereinafter be referred to as the respondents, before the Sub-divisional Magistrate Narsipatnam in July 1971 alleging that the respondents were interfering with the possession of his land situate in the village of Chandrayyapalem in Narasipatnam taluk and there was likelihood of breach of peace. The petition was registered as M.C. 11/71. The sub-Divisional Magistrate forwarded the petition to the police for inquiry and report. After receipt of report from the police, he issued a preliminary order under Section 112 Criminal Procedure Code on 11-9-1971. The respondents appeared before him and were examined on 16-9-1971. The case M.C. 11/71 was being posted for inquiry from time to time. While so, on 25-5-1972 the petitioner filed a petition under Section 117(3) Criminal Procedure Code praying that interim bonds might be obtained from the respondents to keep peace pending disposal of the main case M.C. 11/71. This petition was numbered as M.P. 91/72 was posted for inquiry. Three witnesses were examined on behalf of the petitioner on 8-6-72 and the M.P. 91/72 was posted to 22-6-72 for further proceedings. On 22-6-72 the petitioner against filed another petition alleging that the respondents trespassed into his land armed with sticks and obstructed ploughing operations and beat some of his persons and that they even threatened to kill him and members of his family. The second petition was numbered as M.P. No. 102/72. On receiving this petition the Sub-Divisional Magistrate made an endorsement which reads as follows :-
"Ask the CI to speak to me on this. Notices may be issued to the other parties posted to P.I. Sd. 22-6-72. (The letters 'P.I.' are evidently in abbreviation for personal inspection)".
On 22-6-1972 a notice was sent to the Inspector of Police, Narsipatnam. That note is as follows :
"M.P. No. 102 in M.C. 11/71 dated 22-6-72 Sub-Collector's Officer. Narsipatnam Note to the Circle Inspector Narsipatnam. On Palaparti Appalakonda of Chandrayappalem filed a petition alleging that Palaparti Appandora son of Venkataswamy and 5 others are causing obstruction to the agricultural operations of the petitioners. These respondents are reported to be accused in Crl. No. 110/70 of Narsipatnam Police Station.
I am therefore directed by the Sub-Collector Narsipatnam to inform you that the Sub-Collector wanted to speak with you in the matter. The Sub-Collector also wished to make a personal inspection of the lands in the matter at 8-00 a.m. on 28-6-1972. Please therefore make it convenient to see the Sub-Collector Narsipatnam on or before 27-6-1972.
for Sub-Collector Narsipatnam."
This note was received by the Inspector of Police. Narsipatnam on 27-6-1972. On 28-6-1972 the Sub-Divisional Magistrate visited the land in disputed and made the following note of local inspection :-
"During my personal Inspection I found that the lands of respondents are surrounding the land about which there is a dispute between the parties, that the kallams of the Respondents are very nearby and that there is a strong probability of the respondents being more able to exercise what can be termed as "Locus Standi" than the petitioner. Further I have orally examined the villagers (1) Vantakula Chandrayya son of Pothuraju (2) Vantakula Appanna son of Narappa (3) Chitikala Nookanna and (4) Vantakula Chandrayya son of Appalaswamy, belonging to both the parties and I am satisfied that there exists a situation between the two parties which is likely to cause the two parties which is likely to cause the breach of the peace in the area and I therefore feel it desirable to get the interim bonds executed by the Respondents." On 6-7-1972 the Sub-Divisional Magistrate passed an order in M.P. 91/72 and M.P. 102/72 in M.C. 11/71 directing the respondents to execute interim bonds to keep the peace until the disposal of the main petition. The order shows that it was pronounced in open court on the 6th day of July, 1973. The records show that notices were issued by the Sub-Divisional Magistrate to the respondent sunder the date 3-7-1972 directing the respondents to appear before him and to execute interim bonds on 6-7-72.
3. It is more than clear from the facts stated supra that the procedure adopted by the Sub-Divisional Magistrate is highly irregular and unwarranted by law. No doubt Section 117(3), Criminal Procedure Code empowers a sub-Divisional Magistrate to direct the execution of interim bonds until the conclusion of an inquiry, but the power can be exercised only in a judicious manner and in accordance with the prescribed procedure. On 25-5-1972 when the petitioner filed M.P. 91/72 making serious allegations against the respondents, the Sub-Divisional Magistrate has rightly instituted a regular inquiry into the allegations and examined three witnesses on behalf of the petitioner on 8-6-1972. Having of the petitioner on 8-6-1972. Having posted the matter to 22-6-1972 for further examination of witnesses, he could not have short-circuited the inquiry in M.C. 91/72 on receipt of the petition M.P. 102/72. It is indeed surprising that the Sub-Divisional Magistrate should have thought it proper to speak to the Inspector of Police when the inquiry in M.C. 91/72 was in progress. it is not known from the records whether the Inspector of Police and the Sub-Divisional Magistrate and a talk in connection with the case pending against the respondents. What is still worse is, the Sub-Divisional Magistrate passed the order under Section 117(3), Criminal Procedure Code on the basis of information received by him from person examined at the disputed land when he inspected the same. Section 539-B(1) of the Code of Criminal Procedure reads as follows :-
"Any Judge of Magistrate may at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection."
The section permits a Magistrate to make a local inspection and not a local inquiry. A local inspection and not a local inquiry. A local inspection is permitted only for the purpose of properly appreciating the evidence in the case and it cannot be allowed to take the place of evidence. While making a local inspection, a Magistrate should avoid making enquiries from the people on the spot with regard to the truth or otherwise of the matter in dispute. A Magistrate should not allow him self to be prejudiced in his mind one way or the other by the information that might be given by persons who gather at the place of inspection. Whenever local inspections are made it is incumbent on the Magistrate to exercise caution and impartiality and the evince great care for the avoidance of village gossip or vague rumors reaching their ears. By a local inspection a magistrate can use the testimony of this own senses to test the veracity of the witnesses who give evidence before him regarding the features of the locality, but not for deciding the points of controversy between the parties solely with reference to the observations made at the local inspection. The Magistrate ought not to have acted upon the information given by the four persons referred to in his notes of inspection without examining them regularly as witnesses and recording their evidence after allowing the parties an opportunity to cross-examine them
4. The order of the Magistrate under Section 117(3), Criminal Procedure Code is based entirely on his observations made during his local inspection and the extra-Judicial information collected by him at that time; that does not contain any reference whatever to the evidence of any of the three witnesses examined before the court. The order is without doubt vitiated by incurable irregularities and it is accordingly quashed. In the result the reference is accepted.