C. Jagannadhacharyulu, J.C.
1. In all the above cases referred to this Court either by the Additional Sessions Judge or by the Principal Sessions Judge, Manipur, under Section 438 Cr.P.C., the common question which arises for determination is whether the affidavits, sworn before any Magistrate, other than the concerned District Magistrate or S.D.M. or Magistrate First Class, before whom proceedings under Section 145 Cr.P.C. are pending, should not be considered by him in coming to a conclusion under Section 145(4), Cr.P.C.
2. In the above cases, affidavits, sworn before Magistrate, either First Class or Second Class in Manipur, were filed in the proceedings under Section 145 Cr.P.C. before the S.D.Ms. in the various cases. They were not sworn before the concerned S.D.Ms. before whom the proceedings were pending. The S.D.Ms. relied on them and passed orders under Section 145(4) Cr.P.C. The aggrieved parties assailed the orders in revision before the Sessions Court, Manipur. The Additional Sessions Judge relied upon the decision reported in Hemdan v. State of Rajasthan AIR 1966 Raj 5 and held that the affidavits, which were sworn before some other Magistrates, could not be received as evidence under Section 145(4) Cr.P.C. and referred the cases to this Court for quashing the orders of the S.D.M. In the cases referred to this Court by the Principal Sessions Judge, the counsel for the revision petitioners also raised the same point in this Court.
3. The question for determination is whether affidavits sworn before Magistrates, other than the concerned District Magistrate or S.D.M. or Magistrate of the First Class before whom proceedings under Section 145 Cr.P.C. are pending, cannot be admitted as evidence and perused by him under Section 145(4) Cr.P.C.
4. There are some provisions in Criminal Procedure Code which permit parties to file affidavits in certain cases:
(a) Under Section 74, when a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the Officer who has served a summons is not present at the hearing of the case, an affidavit purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to, be endorsed (in the manner provided by Section 69 or Section 70) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.
(b) Under Section 145(1), whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class makes an enquiry regarding a dispute concerning land etc., which is likely to cause a breach of the peace, he shall make an order in writing inter alia directing the parties to put in written statements and send documents or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of their claims. Under Sub-section (4) of Section 145 Criminal Procedure Code he should, without reference to the merits or the claims of the parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him.
(c) Under Section 499(3), for the purpose of determining whether the sureties are sufficient under Section 499(1), Criminal Procedure Code, when an accused is released on bail on his own bond and the bond of sureties, the Court may, if it so thinks fit, accept affidavits in proof of the facts contained therein, relating to the sufficiency of the sureties or may make such further inquiry as it deems necessary.
(d) Under Section 510A, the evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under the Code. The Court may, however, if it thinks fit and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.
(e) Under Section 526(4) every application for the exercise of the power conferred by Section 526, for transfer of a case shall be made by motion, which shall, except when the applicant is the Advocate-General, be supported by affidavit or affirmation,
(f) Under Section 539A, when any application is made to any Court in the course of any enquiry, trial or other proceedings under the Criminal Procedure Code, and allegations are made therein respecting any public servant, the applicant may give evidence on the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that the evidence relating to such facts be so given.
5. It may be noted that, out of the various provisions relating to the affidavits mentioned above, the provision relating to affidavits under Sub-sections (1) and (4) of Section 145 Criminal Procedure Code was made by the Code of Criminal Procedure (Amendment Act XXVI of 1955), so that the enquiry relating to the question of possession might be a summary one. Affidavits are allowed to be put in to avoid undue delay in the disposal of the matter, which should be done as far as may be practicable, within two months from the date of appearance of the parties. The provisions in Sections 499(3), 510A and 539A were made by the same Amendment Act (Act XXVI of 1955), An affidavit is a declaration as to the facts made in writing before a person having authority to administer oath. The two provisions in the Criminal Procedure Code which lay down the authorities, before whom affidavits may be sworn, are Sections 539 and 539AA. Section 539 applies only to the affidavits filed in the High Court. But, affidavits filed in the other Courts are governed by Section 539AA, which lays down that an affidavit to be used under Section 510A or Section 539A Criminal Procedure Code may be sworn or affirmed either in the manner prescribed in Section 539 or before any Magistrate, The authorities, who can administer oaths and affirmations, are enumerated by Section 4 of the Indian Oaths Act (Act No. X of 1873), which runs as follows:
4. The following Courts and persons are authorised 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 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 or affirmation be administered within the limits of the station, and
(2) that the oath or affirmation by such as a Justice of the Peace is competent to administer.
So, any Court or any person having by law or consent of parties authority to receive evidence is competent to administer oath or affirmation. Section 145(1); Criminal Procedure Code does not lay down before which authorities affidavits, filed thereunder, should be sworn. But, Section 510(510A?) Criminal Procedure Code, which was inserted by the same Amendment Act (Act XXVI of 1955), is the general section, which applies to all such formal affidavits filed in any inquiry or trial or other proceeding under the Criminal Procedure Code. So, no special provision was made in Section 145(1) Criminal Procedure Code as to the authorities, before whom affidavits filed in the inquiry under Section 145(1) Criminal Procedure Code should be sworn. It therefore follows that an affidavit filed in the proceedings under Section 145(1), Criminal Procedure Code can be affirmed or sworn before any Magistrate who is competent to take evidence. This is also the general practice in several Courts in India.
6. There are however two decisions one of the Allahabad High Court and another of the Rajasthan High Court - which took the contrary view. In Wahid v. State : AIR1963All256 , it was held that an affidavit under Section 145, Criminal Procedure Code cannot be sworn or affirmed before a Commissioner or Oath Officer appointed by the High Court, in as much as, such an affidavit can be filed only in the High Court under Section 539 Criminal Procedure Code. This is a correct proposition of law. But, it was further held that the affidavits, which have to be filed in the proceedings under Section 145 Criminal Procedure Code can be sworn by the Magistrate before whom the proceedings are pending decision. If this ruling implies that the affidavits should not be sworn before any other Magistrate, with due respect, I am unable to agree, for reasons already stated. The language of Sections 510A and 539AA, Criminal Procedure Code is wide enough to include any other Magistrate (legally competent to take evidence) as an authority before whom an affidavit may be sworn.
7. Then there is the decision of the Rajasthan High Court in AIR 1966 Raj 5, relied on by the Additional Sessions Judge, who made some of the references in question. Bhargava, J., held that the affidavits for proceedings under Section 145, Criminal Procedure Code cannot be sworn before a Third Class Magistrate or any other Magistrate except by the Sub-Divisional Magistrate, before whom the proceedings are pending or by an Officer empowered by him in that behalf. He further held that Section 510A, Criminal Procedure Code, which is a general section in the Criminal Procedure Code applicable to affidavits to be filed in Courts other than the High Courts, applies to a case where the evidence is of a formal character, that evidence in the proceedings under Section 145 Criminal Procedure Code regarding possession of immovable property cannot be said to be of formal character but that, on the other hand, the evidence is of a substantive nature and that therefore Section 510A Criminal Procedure Code and consequently Section 539AA do not apply. With due respect I am unable to agree with this reasoning.
Prior to the amendment of Section 145(4) by the Amendment Act (Act XXVI of 1955), it required the Magistrate inter alia to receive all such evidence as might be produced by the parties. But, as it was sought to be made summary and speedy, the Amendment Act (Act XXVI of 1955) replaced the provision for taking evidence by affidavits. The dictionary meaning of 'formal' is 'according to form or established mode'; 'relating to form'; 'ceremonious, punctilious, methodical' 'having the form only'; 'having the power of making a thing what it is'; 'essential' 'proper'. Vide Chamber's Twentieth Century Dictionary. What is substantive in the case is the written statement of the claim, as regards the fact of actual possession of the subject of dispute, put in by each party. It is formally proved by affidavits and supported by documents. So, the affidavits are formal. As such, Section 510A, Criminal Procedure Code and consequently Section 539AA apply. The other ground, on which Bhargava, J., held that an affidavit cannot be sworn before a Third Class Magistrate or any other Magistrate, who has no jurisdiction to enquire into the case under Section 145, Criminal Procedure Code, is that, under Section 4 of the Indian Oaths Act, it is only in the discharge of the duty or in exercise of the powers imposed or conferred on them respectively by law that Courts as well as persons are authorised to administer oath and affirmation and that, therefore, a Magistrate, who has no authority to receive evidence in any matter or upon whom no power is imposed or conferred by law, has no authority to administer oath or affirmation. With great regard to the learned Judge I am unable to agree with this interpretation put by him. The words 'having authority to receive evidence' in Clause (a) of Section 4 of the Oaths Act cannot be restricted to the authority of the Court to receive evidence in the particular case, to which the evidence relates. But it refers to the jurisdiction and power of the Court to receive evidence in any case, which jurisdiction or authority must be conferred upon the Court either by law or by consent of the parties. If a Third Class Magistrate has by law the authority to receive evidence, he is competent to administer oaths and affirmations to everyone under Section 4 of the Indian Oaths Act. If the parties are directed to swear before the concerned First Class Magistrate, who is enquiring into the case, then it will only be a needless waste of time for him and the proceedings are bound to drag on. The witnesses, who are out of station and who cannot be conveniently called to the Court, will have to be compelled to appear before the concerned Magistrate or a Magistrate authorised by the concerned Magistrate to administer the oath. The Learned Counsel for the petitioners argued that if the inquiring Magistrate himself administers the oath, he can remember the facts sworn to and that this will facilitate a speedy enquiry. But, this argument does not hold good, if the inquiring Magistrate authorises another Magistrate to administer the oath, as he is competent to authorise another to do so. I am in full agreement with the decision of the Punjab High Court in Ahmad Din v. Abdul Salem AIR 1966 Punj 528, in which the above decisions were also considered. I hold that in order that an affidavit should be a valid one, to be used as evidence in a proceeding under Section 145 Criminal Procedure Code, it may be sworn before any Magistrate, who is otherwise competent to administer oath under Section 4 of the Indian Oaths Act and receive evidence.
8. So, the references made by the Courts below that the proceedings before the Sub-Divisional Magistrate should be set aside on the ground that the affidavits were not sworn either before the Sub-Divisional Magistrate inquiring into the matters or before some other Magistrates authorised by him are rejected. Such of the cases, which were disposed of by the Lower Courts on the preliminary objection only are remanded to the principal Sessions Judge for disposal on merits.