Decided on December 09,1965

Sudarshan Lal Mehta Appellant
STATE Respondents


Gyanendra Kumar, J. - (1.)I am afraid this revision has to be allowed.
(2.)A case against the applicant Under Section 302 IPC is pending enquiry in the court of the Addl. Distt. Magistrate (Judicial), Meerut. The prosecution examined P.Ws. Hardwari and Nanoo in support of its case. These witnesses are alleged to have filed affidavits before the predecessor of the present Addl. Distt. Magistrate (Judicial), Meerut, stating that they did not know anything about the case and were being pressed by the police to give false evidence on behalf of the prosecution. While in the witness box, these affidavits were put to the aforesaid witnesses in cross examination and they stated that their signatures or thumb impressions were obtained on blank pieces of paper by one Girdhari Lal, brother of the applicant; and that they had - not sworn the contents of the affidavits read out to them in the court. It was under these circumstances that the applicant had moved an application before the enquiring Magistrate seeking to examine the then Addl. Distt. Magistrate (Judicial), his Ahalmad and the Advocate, who had identified the deponents, at the time of the verification of their affidavits. The enquiring Magistrate, rejected the said application of the Petitioner, which order was upheld by the Sessions Judge in revision; hence the Petitioner has come up in revision to this Court.
It has to be borne in mind that affidavits as such are not legal evidence in an enquiry Under Section 207A Code of Criminal Procedure. It is true that it is not necessary to prove their formal verification made by the Magistrate or even the endorsement of identification made by the Advocate practising in that court. But in the face of the present statement of the witnesses in the court that they had never appeared before the Magistrate for verification of their affidavits, nor were the contents thereof explained to them before verification and further that the applicant's brother had only taken their thumb impressions or signatures on blank pieces of paper, it is necessary to prove the attending facts by examining the Advocate, who had identified them at the time of the verification of the affidavits as well as the Presiding Officer and his Ahalmad, who supposed to have read over the contents of the affidavits to the deponents before verifying the same. In other words, the identity of the deponents had to be established like any other fact. It had to be proved that the P.Ws. Hardwari and Nanoo were really the persons, who had appeared before the Magistrate concerned at the time of the verification of their affidavits and that those very persons had actually been identified by the Advocate before the Magistrate concerned. Such evidence obviously cannot be taken judicial notice of by the present Addl. Distt. Magistrate (Judicial) without holding an enquiry in the case. It is therefore necessary in the interest of justice to take such evidence.

(3.)THE revision is accordingly allow -ed, the orders of the courts below being set aside. The enquiring Magistrate shall summon the then Addl. Distt. Magistrate (Judicial) Shri Shafiqul Hasan (now posted at Kanpur) as well as his Ahalmad Jai Dutt and Shri Shyam Prakash Sharma, Advocate who is said to have identified the two prosecution witnesses.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.