R.S. Bindra, J.C.
1. The precise point that arises for determination in this reference made Under Section 488, Criminal P.C., by the Additional Sessions Judge, Tripura, is whether in terms of Sub-section (9) of 8. 145, Criminal P.C., it is open to a party to approach the Magistrate with a request to summon a, witness other than one who has filed an affidavit in accordance with the provisions of Sub-section (1) of Section 145, Criminal P.C.
2. The facts of the case fall within a short compass. The petitioner Hari Charan Deb Birma moved an application before the Sub. Divisional Magistrate, Agartala, on 16-4.1966 praying that Kabir Khan, a surveyor in the office of the Sub.Diviaional Migiatrate, Sadar, be summoned for swearing affidavit bearing on the possession over the land in dispute. It was mentioned in the application that the evidence of Kabir Khan was necessary to settle the dispute whether the petitioner or the respondent was in possession of the land. The learned Sub-Divisional Magiatrate refused to summon Kabir Khaan by his order dated 17-5.1966 on the footing 'that the case of summons upon witnesses is discouraged in proceedings Under Section 1.45, Criminal P.C.' Aggrieved by that order the instant petitioner went in revision to tho Court of the Sessions Judge, The matter came up for hearing before Shri N. M. Paul, the Additional Sessions Judge, Tripura. He has made a reference to this Court recommending that the Magistrate's order dated 17.5.1966 should be quashed and direction issued to him that ho should summon the witness for swearing an affidavit.
In the opinion of the Additional Sessions Judge, it is within the competence the Magistrate to issue summons under Sub-section (9) of Section 145 upon a person for appearing Court and swearing an affidavit or even for his oral examination. The Additional Sessions Judge expressed the opinion that the Sub.Divisional Magistrate had rejected the prayer of the petitioner capriciously inasmuch as the petitioner Hari Charan Deb Barma could not have prevailed upon a Government servant to swear an affidavit respecting the possession over the land in dispute and so the only course open to him was to pray for assistance of the Court for summoning the witness an then asking him to swear an affidavit respecting the relevant matters or making an oral statement; on oath.
3. Shri S. Barman, appearing for tho petitioner, submits that despite the fact that Section 145, as at present, contemplate the con. olusion of the enquiry respecting a dispute over possession of the laud primarily on the basin of written statements , document and affidavits, it is open to a party to tho dispute to approach the Magistrate under Sub-section (9) of Section 145 with a prayer to issue summons to a witness to either give oral statement in the Court, or to swear an affidavit, or to produce some documents, and that the Magistrate can in his discretion grant such a prayer. Sub-section (9) provides that the Magistrate may, if he thinks fit, at ray stage of the proceedings Under Section 145, on the application of either party, issue a summons to any witness direct. ing him to attend or to produce any document or thing. A study of the case law on the subject reveals that there is sharp difference of judicial opinion on the exact scope of Sub-section (9).
According to the view of High Courts of Allahabad, Punjab and Orissa, only that witness can be summoned by the Magistrate who has filed an affidavit respecting the enquiry pending before the Magistrate and this power is vested in the Magistrate by the first proviso to Sub-section (4) of Section 145. That proviso is to the effect 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. Sub-section (9), according to this view, does not confer any right upon a party to examine a person as his witness but it only lays down the procedure to be followed in procuring the attendance of his witnesses. It was observed in the case of Jodh Singh v. Bhagambar Dass A.I.R. 1961 Punj 137, that if the contention that a party had a right to seek the aid of Magistrate for summoning a witness summoned in terms of the first proviso to Sub-section (4) whose'affidavit had not been filed, was accepted, the very object of sub.ss. (l) and (4) as amended in the year 1955 would be nullified, and that the procedure instead of being shortened would become doubly cumbersome.
The contra view, subscribed by the High Court of Rajasthan, Madras, Calcutta and Madhya Pradesh, as also Judicial Commissioner's Courts of Himachal Pradesh and Tripura, is that the first proviso to Sub-section (4) is merely an enabling provision of law which entitles the Magistrate to summon and examine any of the persons whose affidavits have been filed on behalf of the parties, and that it does not preclude that Magistrate from calling as a witness any other person when he thinks proper to examine. Despite extensive amendment of Section 145 in 1955, according to this view, Sub-section (9) was retained in its original form and so it can be safely assumed that the Parliament meant it to retain its old vigour and as such the subjection must be given its full apparent and obvious meaning. Therefore, it is opined further, the discretion of the Magistrate under that sub.section to issue summons to a witness at any stage of the proceedings on the application of any party to attend or to produce a document is not in. paired in any way by the proviso to Sub-section (4). Consequently, it is stated, the Magistrate is possessed of the right to summon any witness under Sub-section (9) to give evidence orally or in the form of an affidavit or to produce a doou. ment even though he may not have filed an affidavit under Sub-section (1).
4. The criticism levelled against the second view is that it is in conflict with the aims of the amendments made to Section 145 in the year 1955, the avowed object of which was to shorten the proceedings and to conclude the inquiry at the earliest. If the view that a party has a right under Sub-section (9) to move the Magistrate for summoning a witness who had not filed an affidavit is accepted, the critics of this view point out, the very object of the amendments introduced in 1955 would be nullified and the procedure would become doubly cumbersome instead of being shortened. In my opinion, this criticism is not justified and I say so with all respects to the High Courts subscribing that view. I may mention in passing that in the case of Jodh- Singh A.I.R. 1961 Punj 187 (supra) the Punjab High Court observed that the continued existence of Sub-section (9) in its present form is certainly not very apt and requires looking into by the Legislature. However, it will be conceded, until Sub-section (9) is either deleted or amended in such' a way as to correspond with the first view mentioned above, it must carry as much value as any other statutory provision normally does. So long as Sub-section (9) forms part of Section 145 it cannot be consigned to oblivion, nor considered otiose.
5. It appears that the retention of sub.s .(9) in its original shape after the amendment of 1955 was justified in principle. The combined reading of Sub-section (1) and the first proviso to Sub-section (4) clearly indicates that it waa the intention of the Legislature that the inquiries Under Section 145 should be concluded with utmost despatch and primarily on the basis of written statements, documents and affidavits put in by the parties; and that the Magistrate may, in exceptional cases, if bo thinks fit, summon and examine any person whose affidavit had been put in as to the facts contained therein. It is, however, conceivable that a party to a proceeding Under Section 115 may be anxious to cite a witness in support of his contention but at the same time he cannot prevail upon such a witness to swear an affidavit bearing on the possession over the property in dispute. That such a contingency can arise can easily be visualised. The party may be too humble to approach a man of higher status with a request to swear an affidavit in his favour; or a Government servant may refuse to swear an affidavit at the re. quest of a private party, especially when he is called upon to furnish an affidavit respecting facts contained in Government records.
If in some such eventuality the party is deprived of a right to summon the witness, the administration of justice would suffer a grievous injury. I think it was to meet some such situations that Sub-section (9) was retained in its original shape. It is in order to mention that the Magistrate is not bound to oblige a party approaching him under Sub-section (9) if he thinks that the request made is not justified in the circumstances of the case. The phraseology in which Sub-section (9) is couched gives ample discretion to the Magistrate to accept or reject the prayer made for summoning a witness whose affidavit had not been filed. A frivolous application under that sub.section can be summarily rejected in exercise of his discretion. However, that discretion has to be exercised judicially and not in a capricious or whimsical manner. It would, there, fore, appear that criticism levelled against the second view is without substance, and retention of Sub-section (9) can secure salutary results in cases of the illustrative nature stated above. If the first mentioned view were to prevail, conceivably injustice may be done in some oases and such an eventuality could not have been contemplated by the Parliament with equanimity.
6. For the reasons stated above, I have decided to follow the view subscribed by the High Courts of Rajasthan, Calcutta, Madras and Madhya Bharat and Judicial Commissioner’s Courts of Himachal Pradesh and Tripura. And since in the instant case the learned Magistrate had refused to summon a Government servant, who was required to swear an affidavit on the basis of entries in the revenue records, I see no escape from the conclusion that the recommendation made by the Additional Sessions Judge baa to be accepted and the impugned order quashed. I order accordingly.