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Samauddi Sekh and anr. Vs. Abinas Chandra Sharma - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantSamauddi Sekh and anr.
RespondentAbinas Chandra Sharma
Prior history
P.K. Goswami, C.J.
1. This Revision is directed against an order Passed by the Magistrate First Class, in a proceeding under Section 145 Criminal Procedure Code declaring possession of the disputed land in favour of the first party.
2. The first party submitted written statement and affidavits. The second party submitted their written statement and their sole affidavit. The learned Magistrate after perusal of the documentary evidence produced before him declared possession of the disputed lan
Excerpt:
- .....against an order passed by the magistrate first class, in a proceeding under section 145 criminal procedure code declaring possession of the disputed land in favour of the first party.2. the first party submitted written statement and affidavits. the second party submitted their written statement and their sole affidavit. the learned magistrate after perusal of the documentary evidence produced before him declared possession of the disputed land in favour of the first party.3. the learned counsel for the petitioners submits that the affidavits should not have been treated as evidence in the case as these were not sworn before the magistrate who passed the final orders. in support of his contention he relies upon two decisions of the high courts of allahabad and rajasthan, respectively (.....
Judgment:

P.K. Goswami, C.J.

1. This Revision is directed against an order Passed by the Magistrate First Class, in a proceeding under Section 145 Criminal Procedure Code declaring possession of the disputed land in favour of the first party.

2. The first party submitted written statement and affidavits. The second party submitted their written statement and their sole affidavit. The learned Magistrate after perusal of the documentary evidence produced before him declared possession of the disputed land in favour of the first party.

3. The learned Counsel for the petitioners submits that the affidavits should not have been treated as evidence in the case as these were not sworn before the Magistrate who passed the final orders. In support of his contention he relies upon two decisions of the High Courts of Allahabad and Rajasthan, respectively ( : AIR1963All256 Wahid v. State and AIR 1966 Raj 5. Hemdan v. State of Raiasthan). He also very fairly draws my attention to a decision of the Puniab High Court in the case Ahmad Din v. Abdul Salem reported in , where a contrary view was taken.

4. Section 145 of the Code of Criminal Procedure after the amendment in 1955. has introduced reception of evidence by affidavits under Section 145 (4). The law itself has made provision for considering the affidavits that have got to be filed by the parties. There is no provision under this sub-section that the affidavits would have to be sworn before the Magistrate who is enquiring into the matter. The matter may be different if the affidavits are sworn before persons who are not competent to administer oath. That is, however, not the case here. Any affidavit that is sworn before a competent person can be filed as evidence in the case while a Magistrate makes an enquiry under Section 145 (4) of the Code of Criminal Procedure. With respect I agree with the reasonings given in the Punjab case and with equal respect I disagree with those given in the two decisions of the Allahabad and Rajasthan High Courts. A new procedure has been laid down and there is no bar in law debarring the parties from submitting affidavits which may be very conveniently sworn before any other competent Magistrate.

5. There is, therefore, no substance in this application which is accordingly dismissed.


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