Rajvi Roop Singh, J.C.
1. This is a reference by the learned Sessions Judge, Tripura, recommending the setting aside of an order dated 26-10-64 passed by a First Class Magistrate of Agartala in a proceeding under Section 145, Cr. P. C.
2. The material facts leading up to this reference are as follows:
On 1-6-64, the petitioner Abinash Chandra Deb filed an application before the S. D. M., Sadar, Agartala against the opposite party with the allegation that on 11-9-63 he, as a refugee, got a settlement of 4 k. 16 g. of khas lands in 5 plots appertaining to Dag Nos. 8929/30/ 31/32/33 of Khatian No. 2597 of Mouza Kalkalia P. S. Basutia of Mohanpur Tahsil under Sidhai P. S. The possession of the land was delivered to him by Ashutosh Das, Surveyor and Shri Hari Mohan Dutta, Peon on 11-9-63. Thereafter the first party owned and possessed the said land by ploughing and cultivating it. On 12-4-64, when the first party went on the land to plough it the second party members, namely, Adhir Ch. Nama Sudra, Chandra Kanta Nama Sudra, Surendra Chandra Nama Sudra, Kali Kumar Nama Sudra, Lalmohan Deb Nath, Rajendra Deb Nath, Anu Deb Nath and Manindra Deb Nath came armed with deadly weapons and trespassed into the said land and threatened to attack the first party, but by the intervention of the witnesses of the first party his life was saved. The members of the second party are now trying to dispossess the first party from the said land, therefore, there is an apprehension of breach of the peace, hence an action should be taken under Section 144, Cr. P. C.
The learned S. D. M. sent the petition to O/C. Sidhai P. S. for enquiry and report by 20-6-64. The S. D. M. after perusal of the report ordered to issue notice on the second party members to show cause why they should not be asked to abstain from entering into the said land. On 15-7-64, the second party members filed an application showing cause and stating inter alia that the first party had never any possession in the land in question and that the second party members were owners in possession of the said land on the basis of their purchase from one Moijuddi and one Abdul Khalek who owned and possessed the said land respectively in Rayati jote and Rayati right. On the same date the learned S. D. M. passed an order drawing up proceedings under Section 145, Cr. P. C. requiring both the parties to file written statements, affidavits and other documents.
Thereafter, on 25-8-64, the first party filed1 his written statement along with the receipt dated 11-9-63, showing the payment of Rupees 34.90 P. as Nazar in respect of the lands appertaining to Khatian No. 2597 of Mouza Kalkalia and by a separate petition prayed for summoning 6 witnesses stating that among them 3 official witnesses and the 3 public witnesses were not prepared to appear as witnesses at the request of first party and that as he was a refugee it was not possible for him to submit affidavit affirmed by his witnesses. The learned Magistrate, however, rejected the prayer. Thereafter the first party filed 3 affidavits. He also filed certain documents.
The second party members also filed written statement, 5 affidavits and certain documents. Thereafter the learned Magistrate on hearing the arguments advanced on both sides held that there was no provision for summoning any witnesses, therefore, the prayer of the first party to summon the witnesses is rejected. He by this order also declared the members of the second party to be entitled to possession of the land until evicted therefrom in due course of law.
3. Being aggrieved and dissatisfied with) the judgment of learned S. D. M., Sadar, the first party petitioner preferred a revision petition before the Court of learned Sessions Judge to make a reference to this Court. The learned Sessions Judge after hearing the lawyers appearing on both sides has made this reference with a recommendation for setting aside the order dated 26-10-64 passed by the learned S. D. M., Sadar.
4. I heard the learned Advocates appearing on both sides and perused the record of the case.
5. The learned Counsel for the petitioner contended that in this case on 25-8-64, the petitioner prayed for summoning six witnesses who refused to appear at the request of the first party. But the learned Magistrate, by his order dated 26-10-64., rejected his prayer with the remark that there is no provision for summoning such witnesses. This order of the learned Magistrate is palpably erroneous. Under Sub-section 9 to Section 145 a Magistrate has power to examine a witness if he thinks fit to examine him. In this case the order of learned Magistrate rejecting the prayer of the first party to summon the witnesses has occasioned a failure of justice therefore, the order should be set aside.
6. The learned Counsel for the opposite party contended that a magistrate is not entitled to examine persons as witnesses who have not filed affidavits under Section 145 (4), Cr. P. C.
7. Now in view of the arguments advanced by the learned lawyers on both sides, the sole point, for determination in this case, is whether a Magistrate in a proceeding under Section 145, has power to examine, at the request of a party and if he thinks fit, a person as a witness under Section 145 (9), even if such person has not filed an affidavit contemplated by Section 145(1).
8. Section 145, Cr. P. C. was amended by amendment Act XXVI of 1955: Under Section 145, as it stood before the amendment, ii was found that the enquiry took considerable time. In order to obviate the delay, an amendment was introduced to Section 145. According to the old section whenever the case was a dispute likely to cause a breach of the peace concerning a land, the Magistrate was to make an order requiring the parties to attend Court and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. After receiving the written statements the Magistrate was required to peruse the statements, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, and, if possible, decide which of the parties was at the date of the order in such possession. With a view to expedite the proceedings, under the amended section, it is provided that the Magistrate shall call upon the parties to put in written statements in respect of the fact of actual possession of the subject of dispute and in addition further require them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.
Thus in addition to requiring the parties to the written statements, under the new procedure, the parties are also required to put in documents and to adduce, by putting in affidavits, the evidence of such person, which they rely upon. Instead of receiving all such evidence as may Be produced by the parties, under the new procedure, the Magistrate is required to peruse the statements, document and affidavits put in by parties and conclude the enquiry. The Magistrate is empowered', is he thinks fit, to summon and examine any person whose affidavit has been put in as to the facts contained therein. Under this new sub-section the enquiry is to be concluded on perusing the statements, documents and affidavits put in by the parties. Discretion is given to examine any person who has put in an affidavit under the sub-sections above enumerated. In the new procedure the enquiry has to be concluded without taking evidence except under the discretion of the Magistrate. by examining persons who have put in affidavits. But the original Sub-section (9) as it stood before the amendment is retained in full. Sub-section (9) read as follows:
The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing, Under this sub-section, the Magistrate IB empowered, in his discretion, at any stage of the proceedings on the application of the parties to summon a witness to attend or to produce any document. The submission of the learned Counsel for the opposite party is that Sub-section (9) to Section 145, Cr. P. C. should be read along with other sub-sections to that section and that the discretion given to the Magistrate under Sub-section (9) can only be exercised either for the purpose of examining a witness, who has filed an affidavit under the provisio to Sub-section (4) or for examining a witness to show that no dispute as complained existed under Sub-section (5) to Section 145. To substantiate his contention the learned Counsel relied on the decision reported in Bhagwat Singh v. State : AIR1959All763 Jodh Singh v. Bhagambar Dass and 1962 (1) Cri LJ 61 (Orissa).
9. In : AIR1959All763 it was held that the phrase 'hear the parties' in Sub-section (4) could only mean that arguments should Be? heard and would not include oral examination of the parties and their witnesses. I was further held that Sub-section (9) did not confer any right upon a party to examine person as its witness but it only laid down the procedure to be followed in procuring the attendance of its witnesses. According to Desai, J. in : AIR1959All763 , whether a party has a right to examine a witness or not has to be ascertained from provisions other than Sub-section (9) and Sub-section (4) is the only provision to confer a right upon a party to examine a witness orally in the Court, and Sub-section (9) must be read with the first proviso to Sub-section (4). Thus, in the view of the learned Judge the powers given to the Magistrate under Sub-section (9) can only be exercised by the Magistrate to summon and examine only persons who have filed affidavits. With the greatest respect I am unable to follow this decision for Sub-section (9) is absolute in it. terms, and does not provide that it is subject to the conditions laid down in Sub-section (4). Under Sub-section (9) the Magistrate is empowered at any stage of the proceeding under Section 145 on the application of either party to summon any witness directing him to attend or to produce a document.
The procedure under Sub-section (4) as mended envisages the Magistrate coming to a conclusion on the documents and affidavits filed by the parties without the oral evidence. Sub-aection (4) does not relate to witnesses, whom the parties would like to summon through Court. There may be evidence, oral and documentary, in the case, but it could not be made available except by summoning through the Court the witnesses concerned to give evidence or to produce the documents. Sub-section (4) does not in any way state that this type of evidence cannot be produced at all in Section 145 proceedings. The first proviso to Sub-section (4) cannot be read to restrict the powers of the Magistrate to summoning the witnesses, who have filed affidavits. Subsection (4) deals only with statements, documents and affidavits put in by parties and not evidence of third parties, which can only be obtained by issuing summons through Court. I regret I am unable to share the view of Desai, J. in : AIR1959All763 that the power of the Magistrate to summon witnesses is contrad only to summoning persons, who have filed affidavits. This decision was approved and followed by a Bench of the Punjab High Court in . The Bench also dissented from the view of the Rajasthan High Court in Bahori v. Ghure . The learned Judges refrained from expressing any opinion on the view of Rajasthan High Court that the Magistrate has in any event powers under Section 540, Cr. P. C. to summon witnesses but held that the observations of the Rajasthan High Court regarding Sub-section (9) are obiter and that they were not able to agree with the opinion so expressed. The Bench also observed that, if the contention that a party had a right to apply for summoning witnesses, whose affidavits had not been filed, was accepted, the very object of Sub-sections (1) and (4) as amended would he nullified and that the procedure instead of feeing shortened would become doubly cumbersome. The Bench further observed that the continued existence of Sub-section (9) in its present form was certainly not very apt and required looking into by the legislature, but that they had no doubt that the right to adduce oral evidence must be confined within the limits imposed by the first proviso to Sub-section (4). I regret I am unable to follow this decision after amendment of Section t45 Sub-section (9) as it stood before is tetained and it must be given its full meaning and cannot be disposed of as not being very apt.
10. In 1962 (1) Cri LJ 61 (Orissa) Narasimham C. J. of the Orissa High Court followed the decisions in : AIR1959All763 and , but dissented from . But with greatest respect I am unable to agree with this decision,
11. The view that I am taking is supported by the decision of Sarjoo Prosad, C. J. in Rajasthan case, reported in . In this case Sarjoo Prosad, C. J. expressed his view 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; but the proviso does not preclude the Magistrate from calling as a witness any other person that he thinks proper to examine. The learned Judge observed that it would indeed be surprising if the proviso to Sub-section (4) of Section 145, Cr. P. C. was capable of bearing the interpretation which was sought to be placed upon it by the learned Counsel that the Magistrate had no jurisdiction to examine a person, who had not filed an affidavit as Court witness.
He also found that the powers of the Court under Section 540 were not impaired. I am in respectful agreement with the view of the learned Judge in , that the discretion of the Magistrate at any stage of the proceeding to issue summons to a witness on the application of the parties to attend or to produce a document is not in any way restricted by the first proviso to Sub-section (4) of Section 145. The view in was followed by Madhya Pradesh High Court in Kanhaiyalal v. Devi Singh : AIR1961MP302 where it was observed that Sub-section (9) was wider than the first proviso to Sub-section (4) and that there was no such restraint on the Magistrate or on the scope of the examination on oath, if at any stage of the proceeding on the application of either party the Magistrate at his discretion issued summons to any witness directing him to attend or to produce any document or thing. The Court expressed its dissent with the view taken in : AIR1959All763 .
12. In a recent decision of the Allahabad High Court in Mirza Mohd. Aziz v. Safdar Husain : AIR1962All68 , J. following the decision in held that there was no bar to a Magistrate examining a witness under Section 540, Cr. P. C. and that the proviso to Section 145 (4) was confined in its operation to the witnesses who were named by the parties to the dispute. The decision in : AIR1959All763 which held a contrary view, is not referred to in : AIR1962All68 .
13. Similarly the true scope of section of Sub-section 9 of Section 145, Cr. P. C. has been laid down by Ramratna Singh J. in the ruling of the Division Bench of the Patna High Court in the case of Sheo Kumar v. Tribhuwan Rai : AIR1965Pat25 in the following words:
In my opinion, the legislature deliberately allowed Sub-section 9 to continue for meeting certain contingencies. It may not be possible for a party to obtain the affidavits of some persons either because they do not want to be identified with a party to the dispute or because they are public servants; at the same time such persons may be very competent to speak about possession. What remedy has a party in such a contingency? A party may, of course, request the Magistrate to ask such a person to swear an affidavit, but the Magistrate has no power to compel such a person to do so. The only other alternative, therefore, for the party is to request the Magistrate to summon such a person and examine him as a witness; and this can be done only under Sub-section 9. Of course the Magistrate is not bound to comply with the request of the party; but he has to exercise his discretion judiciously not arbitrarily. For instance, the Magistrate should ordinarily accede to the request of a party to summon and examine a Government servant who may be quite competent to speak about the possession of a disputed land.
14. Following the above rulings I am of the view that a Magistrate may at the request of the party, examine if he thinks fit a person as a witness under Sub-section 9 of Section 145 even if such a person has not filed an affidavit contemplated by Sub-section 1 of that section. In view of the facts of this case the learned S. D. M. should not have rejected the application filed by the first party on 25-8-64 for Summoning witnesses of whom 3 had been named as official, i.e. public servants. The dismissal of the application by the learned Magistrate has occasioned a failure of justice. I am, therefore,. constrained to accept this reference.
15. In the result, the reference is accepted and the impugned order of the learned Magistrate refusing to summon and examine the witnesses named in the petition is set aside and the case is sent back to the learned Magistrate with a direction to allow the first party an opportunity to examine the witnesses on issuing summons on them according to the provisions of Section 145 (9), Cr. P. C.