P.N.Bakshi - (1.) THIS application in revision arises out of proceeding under Section 145 CrPC. An application under Section 145 CrPC was filed by Om Prakash Tyagi on 4th November, 1976 in which he alleged that the opposite parties wanted to take forcible possession of the standing crop on the disputed plots giving rise to an apprehension of breach of peace. The sub-Divisional Magistrate called for a report from the Station Officer. Being satisfied as to the existence of an apprehension of breach of peace, he passed a preliminary order on 3rd July, 1976 directing the parties to file their written -statements. Both the parties filed their written statements in support of their claims. In support of the written -statements of the opposite parties, two affidavits of Shahmal and Khurshed were filed. These affidavits had not been sworn before the Magistrate who had session of the case under Section 145 CrPC. Other documents were also filed. Both the parties also adduced oral evidence. The Magistrate on a consideration of the evidence on the record, came to the conclusion that the second party viz. Kameshwar Singh and another were in possession of the plots in dispute. He, therefore, restrained the first party from interfering with the possession of the second party. Aggrieved thereby a revision was filed by Om Prakash Tyagi before the Sessions Judge, Meerut, which has been allowed on 17th October, 1978, hence this revision by the second party.
(2.) COUNSEL for the applicant has argued that the Sessions Judge has acted illegally in the exercise of his jurisdiction in holding that the affidavits of Shahmal and Khurshed which had not been sworn before the Magistrate could not be read in evidence. The Sessions Judge had relied upon a case reported in AIR 1977 SC page 407- Chhotan Prasad Singh v. Hari Dusadh, wherein it has been held that "Affidavits sworn or affirmed before Magistrates who are not in seisin of the case under Section 145 of the Code, could not be read in evidence under that section......... The affidavits contemplated by Sec. 145 (1) of the Code are evidence for purposes of the proceedings before the Magistrate concerned even though the Evidence Act does not apply to them by virtue of the express provision of Sec. 1 of that Act. In the absence of any specific provision to the contrary in the Code, the affidavits have to be sworn or affirmed in accordance with the provisions of the Oaths Act, 1873 ....... Where therefore, the affidavits were admittedly not sworn or affirmed before Magistrates, dealing with the disputes under Section 145 of the Code, they were not proper affidavits and did not constitute evidence for purpose of Section 145." Learned counsel for the applicant has submitted that the aforesaid Supreme Court decision was one under the unamended Code of Criminal Procedure and would not be applicable in the instant case, which was governed by the new Code. He has placed reliance upon Section 297 of the Code of Criminal Procedure, 1973, which runs as follows : "297 (1). Affidavits to be used before any court under this Code may be sworn or affirmed before- (a) any Judge, or Magistrate, or (b) any Commissioner of Oaths . pointed by a High Court or Court of Sessions, or (c) any notary appointed under the Notaries Act, 1952." On this basis the submission is that the affidavits in question could be read in evidence. I am unable to accept this submission for a number of reasons. Under Section 145 (1) of the old Code of Criminal Procedure, parties were permitted to file affidavits in support of their respective claims, but under Section 145 (1) of the Code of Criminal Procedure, 1973, the word affidavit has; now been deleted. Section 145 (1) Cr PC as it stands today authorises the filing of written statements by the parties with respect to their respective claims to actual possession of the subject matter in dispute. Sec. 145 (4) CrPC which lays down the procedure to be observed by the Magistrate for deciding the question of possession runs as follows :- "145 (4). The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them take such further evidence, if any, as he thinks; necessary, and, if possible, decide: whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute." Thus while conducting the inquiry under Section 145 (4) CrPC the Magistrate has to peruse the written statements, hear the parties, and receive; evidence that may be produced by them.
(3.) THE next relevant section in this; connection is Section 274 CrPC (new) which runs as follows : - "Sec. 274. In all summons cases tried before a Magistrate, in all inquiries under Sections 145 to 149 (both inclusive), and] in all proceedings under Section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination f each witness proceeds, make a memorandum of the substance of his evidence in the language of the Court. (2) Such memorandum shall be signed by the Magistrate and shall form part of the record." This section clarifies that a memorandum of the substance of the evidence which is recorded in an inquiry under Section 145 CrPC has to be maintained by and under the signatures of the Court as a part of the record. There are yet two other relevant sections of the Code of Criminal Procedure, which deal with the filing of affidavits in the course of any inquiry, trial or other proceedings. Section 295 runs as follows: "Sec. 295. When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavits, and the Court may, if it thinks fit order that evidence relating to such facts be so given. "Sec. 296. (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. (2) The court may, if it thinks fit, and shall on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit." From a perusal of the aforesaid sections of the Criminal Procedure Code, it is obvious that affidavits are only permitted to be filed under the Criminal Procedure Code, when they relate to allegations concerning any public servant or when they are of a formal character. Such affidavits may be sworn under the provisions of Section 297 CrPC before any Judge, Magistrate, Oaths Commissioner or Notary appointed under the Notaries Act, 1952, but so far as proceedings under Section 145 CrPC is concerned, there is no provision which permits the filing of such affidavit in an inquiry under that section. The legislature in its wisdom having specifically dropped the words affidavit in Section 145 (l) of the new Code of Criminal Procedure, 1973, it is not open to the courts of law to act contrary to the intention of the legislature. ;