Ramratna Singh, J. - (1.) The petitioner, who was the second party in a proceeding under Section 145 of the Code of Criminal Procedure, has come up to this court against an order dated the 6th May, 1961, passed by the Subdivisional Magistrate of Buxar. On a police sub-Inspector's report dated the 15th October, 1959, the aforesaid proceeding was started on the 22nd October, 1959, and the parties were directed to file their written statements, affidavits, etc., by the 15th November, 1959. The dispute was in respect of a small piece of land near Sidhnathghat of the river Ganga in the town of Buxar, This land was also attached under Section 145(4) of the Code. There were three claimants of whom one is the petitioner and the other two are the opposite parties in this court. The report of the sub-inspector of police was based on a telephonic message received from the D. I. of Police, Buxar, which disclosed that there was an apprehension of some trouble between two of the parties. Instead of filing written statements or affidavits, the petitioner and one of the opposite parties raised objections regarding the description and identity of the disputed land. The sub-divisional Magistrate deputed a pleader commissioner and then an amin for fixing the location of the land in dispute, but even then there were objections by the same party. Ultimately, on the 17th February, 1961, a fresh proceeding under Section 145 was started by the subdivisional Magistrate describing the land in dispute as given in the amin's map prepared on the 22nd December, 1960. It will, therefore, be noticed that even the exact identity or the land in dispute remained undetermined for more than a year and one cannot be sure if there was really any apprehension of a breach of the peace in October, 1959. The parties filed their written statements between the 21st March, 1961, and the 1st April, 1961. But none of the three claimants ever cared to file any affidavit. Instead, on the 10th and the 17th April, 1961, the petitioner filed petitions praying for summoning Sri P.C Sen of the Bihar Civil Service then posted at Gaya, Sri Dharnidhar Missir, Deputy Superintendent of police, then residing in mahalla Chiraiyatanr at Patna and Sri Mohammad Ibrahim Hashmi, retired Deputy Superintendent of Police, then residing at his village home in Patna District, on the ground that they were formerly posted at Buxar and they were competent to speak about the possession of the disputed land. There was an alternative prayer for directing them to swear affidavits to be filed in the proceeding. By the impugned order the learned Magistrate refused both the prayers. The learned advocate for the petitioner did not dispute that portion of the order by which the prayer for directing the aforesaid three gentlemen to swear affidavits was rejected. But he has challenged the other part of the order, namely, the refusal by the Magistrate to summon the three gentlemen as witnesses on behalf of the petitioner.
(2.) The learned Magistrate was of the opinion that he had no power under Section 145 to summon and examine any person other than one who had sworn an affidavit. He relied on two decisions, namely, Bhagwat Singh v. State, AIR 1959 All 763 and Jodh Singh v. Bhagambar Dass, AIR 1961 Punj 187. Mr. Gorakh Nath Singh, who appeared for the contesting opposite parties, relied on these decisions as well as two other decisions, namely, B.D. Naldu v. Shamsheer Jung Bhadur, AIR 1957 Mys 21 and Keshab Acharya v. Somenath Behera, AIR 1958 Orissa 79. These decisions support the view of the learned Magistrate. On the other hand, Mr. Jagdish Pandey who appeared for the petitioner relied on a decision of the Rajasthan High Court in Bahori v. Ghure, AIR 1960 Raj 15 a decision of the Allahabad High Court in Mirza Mohd. Aziz v. Sardar Hussain, AIR 1962 All 68 and a decision of the Judicial Commissioner of Himachal Pradesh in Kapuru v. Gulaba, 1962(1) Cri LJ 34: (AIR 1962 Him Pra 5).
(3.) As the Punjab decision, which is the only Bench decision, contains all the arguments in support of the learned Magistrate's view, it will be sufficient to refer to the reasons given therein. Like the Allahabad decision and the decisions of Mysore and Orissa High Courts, the Punjab decision also proceeds on the amendment made In Section 145 by the amending Act of 1955. Sub-section (1) of Section 145, as it stood prior to the amendment, provided that a Magistrate, if satisfied that the dispute was likely to cause a breach of the peace, might issue a notice to the parties concerned to attend his court within a time fixed and "to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute". By the amendment, however, these words were added: "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." By Sub-section (4), as it stood prior to the amendment, the Magistrate was required to "peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively,......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 before mentioned in such possession of the said subject." By the amended Sub-section, (4), however, the Magistrate is required to "peruse the statements, documents and affidavits, if any, so put in, hear the parties,......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." A new proviso was added to Sub-section (4) as follows : "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." In the amended Section 146, it Is provided that, in case the Magistrate is unable to decide as to which of the parties was in possession of the subject-matter of dispute, he may draw up a statement of the case and forward the record of the proceeding to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject-matter of dispute at the relevant date. Sub-section (1A) of Section 146 lays down that on receipt of such reference, "the civil court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties decide the question of possession so referred to it". The learned Judges whose decisions support the view of the Subdivisional Magistrate, were of the opinion that, in order to expedite the disposal of a proceeding under Section 145, the legislature deliberately omitted the earlier provision contained in Sub-section (1) of Section 145 for receiving and taking evidence of witnesses and substituted therefor documents and evidence through affidavits and further laid down that the Magistrate was to only hear the parties after perusing the written statements, documents and affidavits filed by them. Their Lordships thought that the expression "hear the parties" in the sub-section meant only hearing of arguments and it excluded oral evidence. Their Lordships also laid stress on the new proviso added to Sub-section (4), which empowered the Magistrate to summon and examine any person whose affidavit has been put in. They were, therefore, of the opinion that the Magistrate could, if he considered it necessary, examine only the persons whose affidavits had been filed before deciding the matter with reference to the written statements, documents and affidavits and the arguments of the parties. The Orissa and Mysore High Courts did not consider at all Sub-section (9) of Section 145, which reads as follows: "The Magistrate may, it he thinks fit, at any stage of the proceedings under the section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing". This sub-section is in the same form since before the amending Act of 1955. The Punjab High Court quoted with approval the following observation of M. C. Desai, J., in AIR 1959 All 763: "Sub-section (9) does not confer any right upon 8 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 light to examine a witness orally, it may obtain from the Magistrate a summons 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 learned Judges of the Punjab High Court thought that Sub-section (9) appeared to be redundant, at least it was not very apt and it required looking into by the legislature.;