- (1.) THIS is a reference by the District Magistrate, Rajgarh Headquarters Alwar, on 28th September, 1967, setting aside the order of Sub-Divisional Magistrate, Rajgarh, declaring in a case under sec. 145 Cr. P. C. party No. 2 in that case to be entitled to the possession of the disputed land until evicted therefrom in due course of law and prohibiting disturbance of such possession. The learned District Magistrate has taken the view that the affidavits filed by party No. 2 were not valid as they were sworn before the Notary Public and that the Sub-Divisional Magistrate, Rajgarh, was wrong in relying on those affidavits. The learned District Magistrate has relied on the decision of this court in Hemdan vs. State of Rajasthan (1 ). The reference was listed for hearing before a single Judge. After hearing the arguments, Beri J. has referred this case to a Division Bench as in his opinion that decision deserved re-consideration. It is in this way that this reference has come before us.
(2.) ON the examination of the record, we find that the affidavits filed by party No. 1 were also not sworn before the Sub-Divisional Magistrate, Rajgarh but were sworn before the Second Class Magistrate, Thanaganj, and it is also to be considered whether the affidavits filed by part No. 1 could be acted upon as evidence. No doubt, see. 145 (1) Cr. P. C. permits putting in affidavits to adduce the evidence of such persons as any parties to the proceedings under sec. 145 rely upon in support of their claims and such affidavits are to be perused by the Magistrate for deciding as to which of the parties was at the date of the preliminary order in possession of the subject matter in dispute. But such affidavits must be sworn in before the proper court or authority otherwise they cannot be acted upon by the Magistrate. There are certain provisions in the Code of Criminal Procedure which prescribe as to before which courts particular affidavits and affirmations may be sworn in and these provisions are secs 539, 539a and 539aa. It is clear from the perusal of the provisions of secs. 539 and 539a that the affidavits to be used in the proceedings under sec. 145 Cr. P. C. are not covered by these sections. Sec. 539 refers to affidavits and affirmations to be used before any High Court or any officer of such Court. Sec. 539-A refers to the affidavits in which allegations are made respecting any public servant. Sec. 539-AA is also not applicable to a case of an affidavit to be used in proceedings under sec. 145 Cr. P. C. because it also refers to an affidavit under sec. 510-A or sec. 539-A. There is no other provision in the Code of Criminal Procedure providing for swearing of an affidavit to be used under sec. 145 by a court or person other than the court which is seized of the matter. The only other provision which is to be noticed is sec. 4 of the Indian Oaths Act, which runs as follows: - "4. Authority to administer oaths and affirmations - The following courts and persons are authorities to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law: (a) all courts and persons having by law or consent of the parties authority to receive evidence; (b) the Commanding Officer of any military, naval or air force station or ship occupied by troops in the service of Government; Provided - (1) that the oath and affirmation be administered within the limits of the station; and (2) that the oath and affirmation be such as a justice of the peace is competent to administer. Leaving for the present clause (b) which refers to Commanding Officer and also the two provision, the section lays down (I) that all courts authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties and (2) that all persons having by law or consent of the parties authority to receive evidence are authorised to administer by themselves or by an officer empowered by them in this behalf oaths and affirmations in exercise of the powers imposed or conferred upon them by law. So far as courts are concerned, sec. 4 lays down that oaths and affirmations can be administered by them only in discharge of duties and not otherwise. Now in the instant case, the court of the Sub-Divisional Magistrate, Alwar was the court which was taking proceedings under sec. 145 Cr. P. C. and was holding an enquiry as to possession. The Second Class Magistrate Thanaganj was not holding any inquiry in this case. He could not, therefore, be said to be acting in the discharge of his duties at the time when the affidavits were sworn before him. Thus the affidavits sworn in before the Second Class Magistrate Thanaganj were not properly sworn before an authority to administer oath. The Notary can discharge the functions mentioned in S. 8 of the Notaries Act, 1952, and one of the functions as mentioned in S. 8 (3) is to administer oath to or take any affidavits from any person. But he cannot be said to be a person having by law authority to receive evidence, and there is no question of consent of parties in this case. I This being the position, neither the Second Class Magistrate, Thanagazi, nor the Notary Public Alwar had the authority to administer oath under S. 4 of the Indian Oaths Act. The affidavits, therefore, sworn in by both these authorities should not have been acted upon by the Sub-Divisional Magistrate, Alwar, in deciding the question of possession in this case. In our opinion, the view taken by Bhargava J. in Hemdan vs. State of Rajasthan (supra) is correct. The same view has been taken by the Allahabad High Court in Wahid vs. State (2) which is referred to in Hemdan's case. There is yet another decision of the Allahabad High Court reported as Govind vs. State (3) which is to the same effect. A contrary view has been expressed by Narula J. in Ahmad Din vs. Abdul Saleem (4 ). In that case, the interpretation put by Bhargava J. was considered to have the effect of nullifying the very object of receiving evidence on affidavits as provided in sec. 145 Cr. P. C. It was pointed out that the words having authority' to receive' evidence would not appear to be restricted the authority of the court to receive evidence in the particular case to which the evidence relates but refers to the jurisdiction and power of the Court to receive evidence in any case which jurisdiction or authority may be conferred on the Court either by law or by consent of the parties. So far as these observations of the learned Judge are concerned, they do not call for any comment. But, with respect, we may say that the learned Judge omitted to consider the effect of the words "in discharge of the duties" in Sec. 4 of the Indian Oaths Act. One of the requirements of Sec. 4 is that it is only the court who acting in discharge to administer by itself or any officer empowered on its behalf oaths and affirmations and not any other Court. A court of law cannot administer a person unless it is acting in discharge of its ducies. Suppose a person connected with a case refuses to take oath, what is to happen ? Not taking oath before an officer who had authority to administer it is an offence under S. 178 I. P. C. but that person cannot be prosecuted. A court cannot compel any person to take oath unless such court is authorised to administer oath in discharge of its duties. In our humble opinion examined in the light, the view taken by Narula J, is not correct. In this view of the matter, the affidavits produced by both the parties have to be ignored. The question now arises whether we should remand the case to the Sub-Divisional Magistrate for allowing parties to lead further evidence in the matter or to decide the case on the material on record. We have examined the judgment of the Sub Divisional Magistrate. The learned Magistrate no documentary evidence has been produced by party No. 1 to establish their possession over the land in dispute on the date of the preliminary order or two months prior to it whereas party No. 2 had produced a certified copy of the Settlement Parcha dated the 23rd February, 1964, and also the order dated the 24th July, 1965, of the Sub-Divisional Magistrate, Rajgarh which shows that prima facie it was party No. 2 who were in possession.
(3.) THE case has become an old one and we are of the opinion that the view taken by the Sub-Divisional Magistrate, even if we ignore the affidavits, is correct. We, therefore, reject the reference. .;