J. P. Chaturvedi, J. - (1.) THIS is an application under Sec. 482 Cr.P.C. 1974 by Shri Kant Shastri and five others for quashing the order of the learned City Magistrate, Allahabad dated 10th September, 1975 and the order of the learned VII Additional Sessions Judge, Allahabad dated 17-1-76. It has also been prayed that the City Magistrate be directed to record the statements of the witnesses which the petitioners may like to produce before him in the proceedings pending in the court. The facts giving rise to this application are that there is an institution named Seva Ashram Inter College, Dhindhue in the District of Paratapgarh. On 20th October, 1973 the Station Officer, P.S. Patti submitted a report that there were two rival managing committees of the institution claiming to be in possession of the institution and that there was an apprehension of breach of the peace. A similar report was submitted by the Tahsildar, Patti on 21st October, 1973. The District Magistrate, Partapgarh, on 24-11-1973 being satisfied that there was a dispute relating to the institution which was likely to cause breach of the peace, passed a preliminary order under Sections 145 and 147 Cr.P.C. calling upon the parties to submit their written statements. He also ordered for the attachment of the property of the institution and appointed District Inspector of Schools, Partapgarh as its Receiver.
(2.) ON 26-9-1974 the learned Magistrate ordered both the parties to adduce oral evidence and he fixed 4-10- 1974 as the date for evidence. It appears that the statements of the witnesses of the opposite parties were recorded by the Magistrate. Thereafter an application for transfer of the case was moved by the present petitioners and the case was transferred by the High Court to District Magistrate, Allahabad who sent it for disposal to City Magistrate, Allahabad. In the court of City Magistrate, Allahabad the petitioners examined five witnesses and on 10-9-1975 moved an application which was accompanied by a list of 44 witnesses. They sought permission to adduce them as witnesses. The learned Magistrate was of the view that the witnesses were being produced only to delay the proceedings in the case. He, therefore, rejected the application of the applicants. Aggrieved against the order of the learned Magistrate the petitioners filed a revision which was heard and disposed of by the learned VII. Additional District and Sessions Judge, Allahabad who was of the view that the applicants should have moved an application for an adjournment rather than submit an application seeking permission to produce witnesses which already existed on record. The contention of the learned counsel for the petitioners is that the proceedings were under the provisions of Section 147 of the Code of Criminal Procedure, 1898 and the parties have a right to adduce whatever evidence they like to adduce. Section 147 (1-A) which is relevant provides : "The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists and the provisions of Section 145 shall, as far as may be, be applicable in the case of such inquiry." The provisions of Section 147 differ from those under Section i45 to a great extent. Under Section 145 the parties are required to put in documents and to adduce by putting in affidavits the evidence of such persons as they rely upon in support of such claims. In Section 147 the parties are at liberty to adduce any evidence. They may produce any witness or file affidavits and documents. In this case under the provisions of Section 147 (1-A) the parties by mutual consent agreed to produce oral evidence of witnesses. Subsection (1-A) of Section 147 further allows the parties to produce such evidence as they may consider necessary in their respective case. This discretion of the parties cannot be whittled down by the discretion of the Magistrate specially when the other party had been allowed to adduce all the evidence that it wanted to produce. In the circumstances the learned Magistrate was not justified in refusing an opportunity to the petitioners to adduce evidence.
(3.) THE petition is, therefore, allowed and the order of the learned Magistrate dated 10-9-1975 and the order of the learned VII Additional Sessions Judge dated 17-1-1976 are quashed. The learned Magistrate is directed to record the statements of the witnesses mentioned by the petitioners in their list of such of them as they may prefer to produce. Petition allowed.;