M.C. Desai, J.
1. In the proceedings under Section 145, Cr. P. C., the Sub-Divisional Magistrate issued an order as contemplated by Sub-section (1) requiring the parties to appear before him on a certain date 'to file their written statements regarding their claims of possession'; he did not pass a proper order and did not 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.' The parties appeared before him and the opposite-party did not file any affidavit but sot summonses issued against, and examined, four witnesses. The applicant filed some affidavits and also examined some witnesses. The Sub-Divisional Magistrate then held the opposite-party to be in possession and entitled to remain in possession.
2. It was contended before me that the Sub-Divisional Magistrate acted illegally in acting upon the evidence of witnesses examined by the opposite party when they had not filed any affidavits. In reply it was said that the Sub-Divisional Magistrate-had not directed the opposite-party to put in affidavits to adduce the evidence, of such persons as it relied upon in support of its claim of possession and reliance also was placed upon the provision of Sub-section (9) to the effect that
'the Magistrate may, if the thinks fit, at any stage of the proceedings on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.'
3. The provisions of Section 145 were amended with effect from 1-1-1956 by the Code of Criminal Procedure (Amendment) Act (No. 26 of 1955). Previously affidavits were not allowed to be produced and witnesses had to be examined orally. Now the law has been changed and the legislature has provided that only affidavits should be put in evidence and that if any witnesses are to be examined, they must be the persons whose affidavits have already been put in; no person can be examined as a witness unless his affidavit is on the record. Sub-section (1) states the contents of the preliminary order to be issued by the Sub-Divisional Magistrate; he is required to order the parties only to file written statements, documents and affidavits of persons on whom they rely.
Sub-section (4) lays down how the Sub-Divisional Magistrate is in proceed after the parties have appeared before him; he is required to peruse the written statements, documents and affidavits, if any put in, hear the parties and decide which party was in possession on the relevant date. There is a proviso to the effect that he 'may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein.' This provision means that he is required to peruse only the statements, documents and affidavits and then hear the parties and conclude the inquiry; he is not required to examine any person as a witness.
The evidence of persons on whom the parties rely is required by the legislature to be given in the form of affidavits and in no other form; the direction to the parties in the preliminary order is that they should adduce the evidence of the persons, on whose evidence they rely, by putting in their affidavits. The proviso enables the Magistrate to examine oraily any person whoso affidavit has been put in if a person's affidavit has been put in, he can be examined as a witness, (if the Magistrate considers his oral examination necessary); but a person whose affidavit has not been put in is not allowed to be examined orally at all.
The phrase 'hear the parties' only means that arguments should be heard and does not include oral examination of the parties and their witnesses. The Magistrate is bound to hear the parties; the word used in Sub-section (4) is 'shall'. The compulsion to hear the parties means compulsion to hear their arguments; there can be no compulsion to record the statements of the parties and their witnesses in the absence of anything else to show that he is hound to examine them orally.
If the law contemplates that he is only to receive affidavits of the persons on whom the parties rely, i. e. o the parties and their witnesses, the phrase 'hear the parties' cannot include examining them and their witnesses orally. The same words are used in Section 146(1 A) and there they cannot mean the oral examination of the parties and their witnesses because there is a separate provision for such examination. The proviso to Sub-section (4) indicates that the Magistrate has not got the power to summon and examine any other person; if he had the power to summon and examine any person whether his affidavit has been put in or not, the proviso would have been differently worded.
Sub-section (9) does not confer any right upon a party to examine a person as its witness; it only lays down the procedure to be followed in procuring the attendance of its witnesses. Whether it has a right to examine a witness or not has to be ascertained from other provisions. All that the Sub-section means is that if a party has a right to examine a witness orally, it may obtain from the Magistrate a summon directing him to attend the court. The first proviso to Sub-section (4) is the only provision which confers a right upon a party to examine a wit-ness orally in the court; so Sub-section (9) must be read with the first proviso to Sub-section (4).
4. The Magistrate's failure to pass a proper order contemplated by Section 145(1) and to require the parties to put in affidavits does not confer any right on the carries to examine witnesses whose affidavits are not on the record. They are expected to know what the law is and what their rights are and the Magistrate cannot enhance their rights.
5. I hold that the Sub-Divisional Magistrate acted illegally in examining orally the witnesses of the opposite-party and in acting upon their evidence. The evidence of those witnesses must he disregarded and then the Sub-Divisional Magistrate should find out which party was in possession on the relevant date.
6. I set aside the order of the Sub-Divisional Magistrate dated 6-4-1957 and remand the case for passing another order. The Magistrate shall disregard the evidence of these persons whose affidavits are not on the record and consider the rest of the evidence, not allow any further evidence to be given, hear arguments and then decide which party was in possession on the relevant date and pass the final order accordingly. The case shall be reheard by the District Magistrate himself or by any Magistrate, other than Sri R. P. Singh, to whom he transfers it for disposal.