R. Chandra J. - (1.) THIS reference arises out of the proceedings under Sec tion 145 of the Code of Criminal Pro cedure. Ram Khelawan the petitioner, applied to the Magistrate for summoning the Lekhpal for filing an affidavit in that case. The Magistrate disallowed the prayer on the ground that under the ex isting law, there was no provision for summoning a witness for giving evidence in a case under Section 145 of the Cri. P. C. In the revision filed against that order, the Sessions Judge, Lucknow, did not agree with that view. So, he made a reference to the High Court recom mending that the order of the Magistrate be quashed and he be directed to decide the application of Ram Khelawan for summoning the Lekhpal on the merits. The reference came up for hearing before Brother Misra, J. He thought that the view expressed by Desai, J. (as he then was), in the case of Bhagwat Singh v. State, AIR 1959 All 763, that the Magis trate can summon only those persons for examination whose affidavits have been put in, needed reconsideration. So, he referred the matter to a Bench. In these circumstances, this reference has come up for hearing before us. We have heard Sri Chauhan, Counsel for the opposite parties. Nobody, however, appeared from the side of the applicant in spite of suf ficient service. Since the matter was of some importance, we also called upon the Government Advocate to address us.
(2.) IN AIR 1959 All 763 (Supra) Desai, J. interpreting the provisions of sub-sec tions (4) and (9) of Section 145 of the Criminal P. C. observed: "The provisions of Section 145 were amended with effect from 1-1-1956 by the Criminal P. C. (Amendment) Act (No. 26 of 1955). Previously affidavits were not allowed to be produced 5nd witnesses had to be examined orally. Now the law has been changed and the legislature has pro vided that only affidavits should be put in evidence and that if any witnesses are to be examined, they must be the persons whose affidavits have already been put in; no person can be examined as a witness unless his affidavit is on the record............ ... ... ... ... ... ... ... ... ... Sub-section (4) lays down how the sub-Divisional Magistrate is to proceed after the parties have appeared before him; he is required to peruse the written state ments, documents and affidavits, if any put in, hear the parties and decide which party was in possession on the relevant date. There is a proviso to the effect that he 'may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein'. This provision means that he is required to peruse only the statements, Sub-section (9) does not confer any right upon a party to examine a person as its witness; it only lays down the procedure to be followed in procuring the attendance of its witnesses. Whether it has a right to examine a witness or not has to be ascertained from other provisions. All that the sub-section means is that if a party has a right to examine a witness orally, it may obtain from the Magistrate a summon directing him to attend the Court. The first proviso to sub-section (4) is the only provision which confers a right upon a party to examine a witness orally in the Court; so sub-section (9) must be read with the first proviso to sub-Section (4). The Magistrate's failure to pass a pro per order contemplated by Section 145 (1) and to require the parties to put in af fidavits does not confer any right on the parties to examine witnesses whose af fidavits are not on the record............... This view was also followed by the Divi sion Bench in the case of S. Jodh Singh v. Mahant Bhagambar Das, AIR 1961 Punj 187. "Though we feel that the continued ex istence of sub-section (9) in its present form is certainly not very apt and re quires looking into by the Legislature, yet we have no doubt in our mind that it gives no right to a party to summon or examine any witness orally apart from the right given to it to adduce evidence as detailed in sub-section (1) and that oral examination of a witness must be con fined within the limits imposed by the newly added proviso namely the first pro viso to sub-section (4)." With the greatest respect we do not agree with the view expressed in these cases, Our reasons shall follow. For finding out the real Intention of the Legislature, we propose to examine in detail the provisions of Section 145 of the Criminal P. C. as they stand after the amendment by Act 26 of 1955. The sec tion reads: "(1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace ex ists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties con cerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of their respective claims as respects the fact of actual pos session of the subject of dispute 'and fur ther requiring them to put in such docu ments, or to adduce, by putting in af fidavits, the evidence of such persons, as they rely upon in support of such claim. (2) For the purposes of this section the expression 'land or water' includes build ings, markets, fisheries........................ (3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, (4) 'The Magistrate shall then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute peruse the state ments, documents and affidavits, if any,, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties be fore him and, if possible, decide the ques tion whether any and which of the par ties was at the date of the order before mentioned hi such possession of the said subject: 'Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein': 'Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dis possessed he may treat the party so dis possessed as if he had been in possession at such date'. 'Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dis pute, pending his decision under this sec tion.' (5) Nothing in this section shall preclude any party so required to attend, or any other person interested from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6) If the Magistrate decides that one of the parties was or should under the se cond proviso to sub- section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law and forbidding all distur bance of such possession until such evic tion and when he proceeds under the second proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.......................... (The underlined (here into) por tions indicate amendments made to the section by Act No. 26 of 1955).
(3.) SECTION 145 is intended only to pro vide a speedy remedy for the prevention of breaches of peace arising out of dis putes relating to immoveable property by allowing one or either of the parties in possession. By Act No. 26 of 1955, certain important changes have been introduced. The main object of the amendments is quicker disposal of enquiries under this section. Sub-sections (1), (4) (5) and (6) of this section are complementary.Once an order has been passed under sub-sec tion (1), it is obligatory for a Magistrate to make the enquiry provided for in sub section (4) subject only to the obligation under sub-section (5) to determinate proceedings in the circumstances therein contemplated. The words of sub-sec tion (4) "the Magistrate shall then........."are mandatory. The word 'then' refers to the stage when in compliance with the order under sub-section (1) the parties have put in their written statements and attended the Court. Sub-section (5) is emphatic that the order under sub-sec tion (1) shall be final subject to the one exception that the Magistrate shall cancel the order and stay all further proceed ings if it is shown that no dispute likely to cause breach of the peace exists or has existed. On the completion of the enquiry under sub-section (4) a final order under sub-section (6) must follow it being obvious that the holding of the said en quiry is a condition precedent to the making of the order under sub-s. (6).;