- (1.) THIS reference arises out of the proceedings under Section 145 of the Code of Criminal Procedure. 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 existing 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 recommending 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 Magistrate 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 sufficient 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-sections (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 and witnesses had to be examined orally. Now the law has been changed and the legislature has provided 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 statements, 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, documents and affidavits and then hear the parties and conclude the inquiry; he is not required to examine any person as a witness. . . . . . . . . . . . . . . . . . . . . . . . . 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 subsection 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 Subsection (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 subsection (4 ). The Magistrate's failure to pass a proper order contemplated by Section 145 (1) and to require the parties to put in affidavits does not confer any right on the parties to examine witnesses whose affidavits are not on the record. . . . . . . . . . . . . . . " This view was also followed by the Division Bench in the case of Section Jodh Singh V. Mahant Bhagambar Das, AIR 1961 Punj 187. "though we feel that the continued existence of Sub-section (9) in its present form is certainly not very apt and requires 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 confined within the limits imposed by the newly added proviso namely the first proviso to Sub-section (4 ). " With the greatest respect we do not agree with the view expressed in these cases. Our reasons shall follow.
(3.) 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 section 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 exists concerning any land or water or the boundaries thereof, within the local limits of his iurisdiction, he shall make an order in writing stating the grounds of his being so satisfied, and requiring the parties concerned 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 possession of the subject of dispute 'and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims'. (2) For the purposes of this section the expression 'land or water' includes buildings, 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 statements, 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 before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in 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 dispossessed he may treat the party so dispossessed 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 dispute, pending his decision under this section,' (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 second 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 therefrom in due course of law, and forbidding all disturbance of such possession until such eviction, 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 ' ') portions indicate amendments made to the section by Act No. 26 of 1955 ).;