Bhargava, J. - (1.) THIS is an application in revision and arises out of the proceedings under sec. 147 of the Code of Criminal Procedure.
(2.) ON 20th December, 1961 Phoolsingh and Rup Singh made an application before the Sub-Divisional Magistrate, Fatehpur alleging that their right of way to their Baras in Khasra Nos. 113 and 114 through Khasra Nos. 116 and 117 has been obstructed by Nanga and others and a breach of the peace was apprehended. They prayed that the said obstruction be removed. The learned Sub-Divisional Magistrate after recording the statements of the applicants and perusing the documentary evidence produced by them passed an order on 14th January, 1962 requiring the parties to put in their written statements of their respective claims and also to produce all documentary evidence. Nanga and others filed their written statements denying the right of way of the applicants through Khasra Nos. 116 and 117. No witnesses were examined by the parties before the Sub-Divisional Magistrate and both of them submitted affidavits in support of their claims. Learned Sub-Divisional Magistrate in fact permitted them to lead evidence by affidavits as would be clear from his order dated 1st February, 1962. He then considered the affidavits of the parties and documentary evidence produced by them and passed an order prohibiting Nanga and others from interfering with the right of way of the applicants to their Baras through Khasra Nos. 116 and 117 during the time there were no crops on Khasra Nos. 116 and 117. A revision was preferred against this order to the court of the learned Additional Sessions Judge, Sikar but the same was rejected. Several objections have been raised in this revision but it is unnecessary to decide all of them because this revision application succeeds on this ground alone that the learned Sub-Divisional Magistrate failed to follow the procedure as laid down in sec. 147 of the Code of Criminal Procedure. By the amending Act No. 26 of 1955 the words 'in the manner hereinafter provided' have been substituted for the words' in the manner provided in sec. 145 and provisions of that section as far as possible may be, be applicable in the case of such inquiry' in sub-sec. 1 of sec. 147. Sub-sec. 1 (A) to sec. 147 has been newly added and it says that "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 sec. 145 shall, as far as may be, applicable in the case of such inquiry. " This sub-section lays down the procedure which is required to be followed in proceedings under sec. 147 of the Code. This sub-section entitles the parties to the proceedings to adduce evidence. The Magistrate also is empowered to take further evidence if he thinks necessary. The word 'evidence, so far as oral evidence is concerned means the statements of witnesses before the court in relation to matters of facts under inquiry. Where ever the legislature intended that evidence might be given by means of affidavits it has made a special provision for it in the Code, for instance in sec. 145, 51oa and 539a. If the legislature had intended that in proceedings under sec. 147 evidence might also be given by means of affidavits the legislature would have said so just as it has done in the case of proceedings under sec. 145 of the Code. The words 'provisions of sec. 145 shall, as far as may be, be applicable in the case of such inquiry' occurring in sub-sec. 1 cannot be interpreted to mean that evidence in proceedings under sec. 147 may also be given by putting in affidavits of persons because in sub-sec. 1a of sec. 147 it has been laid down clearly that the Magistrate shall take all such evidence as may be produced by the parties respectively. The above words only indicate that other matters of procedure such as are contained in sub-sec. 5,7 and 9 of sec. 145 would, as far as may be, be applicable to proceeding under sec. 147. But it seems quite clear that the legislature never intended that in proceedings under sec. 147 evidence should be given by means of affidavits. The learned Magistrate has therefore, acted illegally in deciding the dispute between the parties on the basis of affidavits, filed before him. In these circumstances the order passed by learned Sub-Divisional Magistrate cannot be maintained and is set aside. The case will go back to the District Magistrate, Sikar so that he may send it to any Magistrate subordinate to him other than the Magistrate who decided this case, for taking further proceedings according to law. .;