ORDER
Vishwanath Mishra, J.
1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for quashing the order passed by the Sessions Judge of Saharan in Criminal Revision No. 155 of 1978 (Annexure 2 to the application) relating to a proceeding under Section 147 of the Code.
2. Briefly stated, the case is that the opposite party had filed a petition before the Executive Magistrate, Madhopura on 17th December, 1974, for starting a proceeding under Section 144 or 147 of the Code against the petitioners in respect of 9 Bighas 12 Kathas 16 dhurs of land covered by plots Nos. 1858 and 2100 of khata No. 167, village Bhelwa, alleging that it was a public land used as cremation ground, Imambara etc. etc. The Magistrate issued a show cause notice. The petitioners of this case filed show cause saying that the land was never a public land inasmuch as they had taken settlement of the same from the ex-intermediary in the years 1936 and 1942, the land having been recorded as Ghairmazrue Malik land. Further it was said that they had also purchased a portion thereof on 1st February, 1972, and their names had also been shown in the Jamabandi return of the ex-intermediary and they had been getting rent receipts from the ex-landlords as also from the State of Bihar. So far as graveyard is concerned, their definite case is that the graveyard stands in plot No. 6098 (New) measuring 1 Bigha 6 kathas with which, they say, they have absolutely nothing to do.The police enquired into the matter and submitted a report to say that the graveyard exists in plot No. 6098 (New) and not in plots 1858 and 2100. A protest petition was also filed and ultimately the Magistrate himself held local inspection. He also found that there was no dispute actually regarding the two plots in question and the graveyard stood in plot No. 6098. After holding the local inspection, by his order dated 14th April, 1978/l8th April, 1978 (Annexure 1 to the application) he held that there was no cause for starting any proceeding.
3. Against that, Criminal Revision No. 155 of 1978 was filed in the court of the Sessions Judge, Saharan, who set aside that order and directed the Magistrate to draw up a proceeding under Section 147 of the Code with respect to the plots in question (vide Annexure 2). Against that order, this application has been filed.
4. The learned Magistrate, as appears from his order, has fully considered the documents filed by the petitioners. The petitioners had filed rent receipts, survey parcha, and the sale deed in support of their long possession over the plots in dispute. The opposite party, who claimed the land to be public land (graveyard and Imambara) did not produce a single paper in support of his assertion. The learned Magistrate has also taken into consideration the police report as also his own local inspection in passing the order,
5. The learned Sessions Judge has considered only one aspect of the whole matter, and that is, that the memorandum of local inspection was not left on the record by the Magistrate, and only on this ground he has set aside the order of the Executive Magistrate. He also seems to have expressed his opinion that it is a public land, but there is absolutely nothing in support thereof.
6. Learned counsel for the petitioners has placed reliance on the case of Sheobarat Singh v. Bharat Mahton 1972 BLJR 278. In that case also the memorandum of local inspection was not kept on the record but it was held that if the decision was based on other evidence also, the order was not bad. As has been shown above, the local inspection made by the Magistrate was only one of the matters discussed by him. Apart from that, there were so many materials on the record in support of the order.
7. Learned counsel for the petitioners has also placed reliance on the case of R. H. Bhutani v. Mani J. Desai : 1969 Cri LJ 13 wherein it has been laid down that the satisfaction under Sub-section (1) of Section 145 is the satisfaction of the Magistrate and, as such, it is for him to decide whether on the materials available he should initiate a proceeding under that section or not. In Section 147(1) of the Code also it is the satisfaction of the Magistrate, which plays an important part, if the Magistrate is not satisfied and if there are good reasons for the same, the satisfaction cannot be thrust upon him by any superior court. In the case of B. B. Biswas v. Muchiram Mahata AIR 1939 Pat 111 : 40 Cri LJ 345, it has been laid down that the High Court cannot order a Magistrate to initiate a proceeding under Section 147 of the Code when he has refused to take action thereunder.
8. It would, thus, appear that the learned Sessions Judge was absolutely wrong in setting aside the order of the Magistrate only for want of the memorandum of local inspection and he was further wrong in asking the Magistrate to draw up a proceeding under Section 147 of the Code. The order of the Sessions Judge is, therefore, set aside and the application is allowed.