D.B. Lal, J.
1. This Criminal Revision is directed against the order of the sub-Divisional Magistrate, Gadag, in a case Under Section 145 a the Cr.PC The petitioner constituted party-I, while the respondent No. 1 constituted Party-Il and it was stated 'hat there was a dispute as to possession between them in respect of Survey Numbers 323/2, 324/1 and 325/1 of Ravadi village in Ron Taluk. The police report was submitted to the Magistrate on 6-3-1975 which referred to that dispute and there was an allegation that the parties were likely to commit breach of the peace. Accordingly, the J earned Magistrate passed the preliminary order and directed both the parties to adduce evidence by affidavits. Subsequently, that evidence was considered and party-II was held to be entitled to possession. Party-I felt aggrieved of that order and preferred the present revision.
2. The main contention of the learned counsel for the petitioner, is that the evidence by affidavits could not be adduced in view of Section 145 of the Cr.PC of 1973. In the previous Code, no doubt the provision was that evidence was only admissible by written statements, documents and affidavits. As such affidavits were admissible and the Magistrate could decide regarding possession on the basis of such evidence by Affidavits. In the new code, Under Section 145(4) the language used is 'receive all such e vide ace as may be produced by them' and the language used in the previous Code, namely, 'Statements, documents and affidavits, if any so put in' is no longer to be found there. The learned counsel contends upon that, that evidence by affidavits cannot be adduced. In that connection reference was made to Sections 295 and 296 of the CrIPC of 1973. It is specifically provided for in Section 295 that affidavits in proof of conduct of public servants can be given. Similarly, Under Section 296 of the CrIPC 1973, evidence of any person whose evidence is of a formal character may be given by affidavit. In other words, besides the two categories of evidence as specified in Sections 295 and 296 no other evidence can be adduced by affidavit. The evidence adduced in this case can by no means be considered as evidence of a person which is of a formal character. The said persons have given statements about the respective possession. As such the evidence was not of a formal character and Section 296 of the Cr.PC will be of no help.
3. The learned counsel also referred to B. N'. Munibasappa v. Gurusiddaraja Desikendra Swamigal (1956) 34 Mys LJ 71. That was, no doubt a case arising under Order 19 Rules 1 and 2 of the Civil P. C. The learned Judge, however, observed that an affidavit can never take the place of an evidence recorded in the ordinary way, unless the case is one to which provisions of Rr. 1 and 2 of Order 19 of the Civil P. C. applied or the affidavits related to a matter in regard to which the Court has been expressly permitted to act upon affidavit. This express permission by the Court is inherent in Rule 1 of Order 19 of the Civil P. C. Applying this principle with reference to Sections 295 and 296 of the new Code of the Criminal Procedure, unless the evidence is of a formal character in the instant case and Section 296 of the CrIPC applied to such evidence alone affidavits could not be availed of. It is not a case in which any express permission of the Court was taken to file an affidavit. Section 145 (4) of the Cr.PC did not provide for giving the evidence upon affidavit.
4. In this view of the matter, the learned Magistrate relied upon evidence which could not be read and no decision could be arrived at on the basis of such evidence. The Revision is therefore allowed and the order of the learned Magistrate is set aside. The case is remanded to the learned Magistrate to enable the parties to adduce evidence in accordance with law. Thereafter, he has to decide the dispute on merit.