S.K. Dutta, J.
1. This is a reference made by the Additional Sessions Judge, Lower Assam Division Gauhati, in connection with an order passed in a proceeding under Section 145 of the Code of Criminal Procedure by Shri S. C. Barua, Magistrate, 1st Class, Barpeta.
2. The learned Magistrate drew up the said proceeding at the instance of the first party and came to a finding that the second party was in possession of the disputed land. In doing so, he summoned and examined a Lot Mandal as a Court witness. The learned Additional Sessions Judge submits that under Section 145 of the Code of Criminal Procedure, as it stands today, no Court witness can be summoned. Mr. Bardalai, the learned Counsel appearing on be half of the petitioner, submits that there are two provisions under which a witness can be examined in a proceeding under Section 145, Criminal Procedure Code, namely, under the first proviso to Sub-S.(4) of the said section the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in, and, secondly, under Sub-section (9) of the said section, the Magistrate may at any stage summon a witness on an application of either party. Mr. Bardalai contends that except these two kinds of witnesses, no other witness can be examined. I, however, do not find any force in this contention. Section 540 of the Code of Criminal Procedure enables any Court at any stage of any enquiry or other proceedings under the Code to do three things, namely(1) to summon any person as a witness (2) to examine any person who is in attendance though not summoned, or 3 to recall and re-examine any person already examined. In view of this provision, there is no bar for a Court, to summon some person who in his opinion may give valuable evidence as a Court witness. This view gets support from a decision of the Rajasthan High Court, in the case of Bahori v. Ghure AIR I960 Raj 15, as well as a decision of the Allahabad High Court, in the case of Mirza Mohd. Aziz v. Safdar Husain : AIR1962All68 In short, there is no bar for a Magistrate to examine a Court witness under Section 540 of the Code minal Procedure even in a proceeding under Section 145.
In this view of the matter, the reference is rejected.