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Keshab Acharya Vs. Somehath Behera and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Ref. No. 31 of 1957
Judge
Reported inAIR1958Ori79; 24(1958)CLT97; 1958CriLJ650
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145(4) and 146(1A); Code of Criminal Procedure (CrPC) (Amendment) Act, 1955
AppellantKeshab Acharya
RespondentSomehath Behera and anr.
Appellant AdvocateB.K. Pal and ;C.R. Das, Advs.
Respondent AdvocateR.C. Ram, Adv.
Cases ReferredDodda Revenna v. T.V. Narayana Murty
Excerpt:
.....time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman,..........1957 mys 43 (a), where the aforesaid view was taken and it was further observed that the words 'hear the parties' occurring in sub-section (4) of section 145, criminal p. c., would mean 'hear the arguments of parties' and would not include taking the evidence of the parties if they desire to appear as witnesses.4. mr. ram who opposes the reference, fairly conceded that the learned sessions judge was right in observing that by virtue of the first proviso to sub-section (4) of section 145, criminal p. c., only those persons who had filed affidavits could be examined as witnesses. but he urged that the words 'hear the parties' occurring in the main portion of sub-section (4) of section 145 are wide enough to include taking the evidence of the parties themselves, if they desire to appear.....
Judgment:
ORDER

Narasimham, C.J.

1. This is a reference by the Sessions Judge of Mayurbhanj for setting aside an order under Section 145, Criminal P. C., passed by a FirstClass Magistrate of Udala,

2. The learned Magistrate drew up the proceeding under Section 145, Criminal P. C., on the 8th December 1956. On the 31st December 1956 both parties filed written statements and affidavits aspermitted by the recent amendment to Section 145, Criminal P. C. The learned Magistrate heard the Pleaders for both parties on the 18th January 1957 and passed the following order:

'Heard Pleaders of both parties. But I amnot satisfied in respect of the possession over the suit land, of either party. Let the first partycome with all evidence, oral and documentary, on the 8th February 1957.'

On the 20th March 1957 five witnesses were examined for the first party and on the 11th May 1957 four witnesses were examined for the second party. Then, on the 29th May 1957 the learned Magistrate declared the first party to be in possession of the disputed property.

3. The Sessions Judge in his referring order has pointed out that the learned Magistrate committed an illegality in examining witnesses Nos. 1, 4 and 5 of the first party and witnesses Nos. 1, 3 and 4 of the second party inasmuch as they had not put in their affidavits in support of the respective claims of either party, as required by Sub-section (1) of Section 145, Criminal P. C. According to the Sessions Judge the first proviso to Sub-section (4) of Section 145 authorises the Magistrate to summon and examine only those persons whose affidavits have been put in and the examination of persons who have not put in their affidavits would be illegal.

He relied on a recent decision of the Mysore High Court, reported in Dodda Revenna v. T.V. Narayana Murty, AIR 1957 Mys 43 (A), where the aforesaid view was taken and it was further observed that the words 'hear the parties' occurring in Sub-section (4) of Section 145, Criminal P. C., would mean 'hear the arguments of parties' and would not include taking the evidence of the parties if they desire to appear as witnesses.

4. Mr. Ram who opposes the reference, fairly conceded that the learned Sessions Judge was right in observing that by virtue of the first proviso to Sub-section (4) of Section 145, Criminal P. C., only those persons who had filed affidavits could be examined as witnesses. But he urged that the words 'hear the parties' occurring in the main portion of Sub-section (4) of Section 145 are wide enough to include taking the evidence of the parties themselves, if they desire to appear as witnesses, and that consequently even though the evidence of witnesses 1, 4 and 5 of the first party and 1, 3 and 4 of the second party may be ignored as inadmissible the learned Magistrate was justified in coming to his conclusion on the evidence of the parties who deposed before him.

5. The main question for decision, therefore, is whether the words 'hear the parties' occurring in Sub-section (4) of Section 145, Criminal P. C., would include taking the evidence of the parties even though they might not have chosen to file affidavits on their behalf. I think that on this point also the Mysore decision is a clear answer to Mr. Ram's contention. In Sub-section (4) of Section 145, Criminal P. C., as it stood before the recent amendment, after the words 'hear the parties' there were found the words 'receive all such evidence as may be produced by them respectively'.

These latter words have now been omitted and in the first proviso to Sub-section (4) of Section 145 the examination of witnesses whose affidavits have been filed, alone has been provided. If the examination of the parties themselves as witnesses was also permissible even though they had not filed affidavits, the proviso would have been drafted differently. If the parties want to give evidence on oath, there is no legal bar to their filing affidavits along with the affidavits of the witnesses, as permitted by Sub-section (1) of Section 145, and then requesting the Magistrate to examine them.

6. A perusal of Sub-section (1A) of Section 146 of the Criminal Procedure Code, confirms this view.

That sub-section is as follows:

'146. (1A) On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to it.'

Here, it will be found that the Civil Court is authorised to take such further evidence as may be produced by the parties respectively and then, after hearing the parties, decide the question of possession. 'Further evidence as may be produced by the parties' would also include the evidence of the parties themselves, in addition to that of their witnesses.

Hence, the expression 'hearing the parties' occurring in the aforesaid Sub-section (1A) of Section 146, Criminal P. C., would not include the taking of the evidence of the parties and must be limited to hearing arguments only. The expressions 'hearing the parties' occurring in Sub-section (1A) of Section 146 and 'hear the parties' occurring in Sub-section (4) of Section 145, Criminal P. C., must be given the same meaning, and if in the former sub-section it excludes the examination of the parties as witnesses, it will be difficult to hold, as a matter of statutory construction, that in the latter sub-section it includes such an examination.

7. I would therefore, in agreement with AIR 1957 Mysore 43 (A), hold that the Magistrate committed an illegality in taking the evidence of persons who had not filed affidavits.

8. The final order of the Magistrate, passed on the 29th May 1957 is accordingly set aside and the proceedings are restored to the stage at which they were on the 18th January 1957. The Magistrate may give both parties a further opportunity to file affidavits of persons on whom they rely in support of their respective claims, and then dispose of the case according to law. The Sub-Divisional Magistrate may transfer the case to some other Magistrate for disposal.


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