R.L. Narasimham, C.J.
1. This is a reference by the Addl. DistrictMagistrate, of Cuttack recommending the setting aside ofa final order under Section 145, Cr. P. C. passed by ShriP. K. Das, Magistrate 1st Class, Cuttack, in a criminal miscellaneous case (No. 523 of 1961).
2. The proceedings were initiated on 28-10-1951 and the affidavits of both the parties were filed on several succeeding dates, and on 284-1962 the learned Magistrate wrote in the order-sheet as follows:
'Parties present. 1st party filed affidavits ,as per list. No further, acceptance of documents on affidavits. Put up on 5-5-1962 for hearing. The first party has to pay the cost already ordered and unless he pays the cost on next date he has to pay more costs.'
Notwithstanding this clear order he appears to have accepted the affidavit of one Kunda Dei which was filed before him on 21-6-1962 on behalf of the 1st party. The order-sheet of that date does not show that the Magistrate applied his mind to the filing of the affidavit by Kunda Dei, though that affidavit was on record. If the Magistrate wanted to take further affidavits from the 1st party on that date he should, in fairness, have given the second party also another chance to file further affidavits if necessary after drawing their attention to the filing of the affidavits by Kunda Dei.
Further adjournments were granted by the Magistrate on the request of the first party to summon the Naib Tahasildar -- the first party having undertaken to pay his travelling allowance and other expenses. But repeated issue of summons on him proved infructuous and at last on 23-11-1962 the Naib Tahasildar appeared before the Court and he was examined as a court witness, cross-examined by the parties and discharged. In the final order of the Magistrate he has relied very much on the evidence of the Naib Tahasildar who has deposed mainly about his personal knowledge of the possession of the first party. Though he is an official witness, it appears that in this proceeding he) merely deposed about what be knew from personal knowledge in his private capacity and did not depose about anything which came to his knowledge while performing his official duties.
3. The learned Additional District Magistrate has recommended the quashing of the order on the ground that the Magistrate had no jurisdiction to examine as a witness the Naib Tahasildar because he did not file affidavits in this case.
4. It is true that in Keshab Acharya v. Somenath Behera, 24 Cut L T 97 : (AIR 1958 Orissa 79) and to Kalandi Charan Pati v. Udekar Jena, 25 Cut LT 86, this Court held that in a proceeding under Section 145, Cr. P.C. a party cannot be permitted to examine as a witness a person whose affidavit has not been put in. This follows as a necessary inference from the language of the proviso to Sub-section (4) of that Section, as amended in 1955. In the aforesaid two decisions the power of the Court to summon a witness under Section 540, Cr. P.C. was not considered because the witnesses examined in those cases were witnesses for the parties and not court witnesses. My attention was drawn to a Rajasthan decision reported in Bahori v. Ghure, AIR 1960 Raj 15 which has been followed in a decision of the Allahabad High Court reported in Mirza Mohd. Aziz v. Safdar Husain, AIR 1962 All 68, where it was held that the power of the Court to summon and examine a person as a Court witness under Section 540, Cr. P.C. was not in any way affected by the proviso to Sub-section (4) of Section 145, Cr. P.C. see also Bhagwat Singh v. State, AIR 1959 All 763. There is really no conflict between the view expressed in these decisions and the view expressed in the Orissa decisions because in the Orissa cases the power of the Court to examine a person under Section 540, Cr. P.C. did not arise for consideration.
5. There can be no doubt that the power of the Court under Section 540, Cr. P.C. is not in any way controlled by the proviso to Sub-section (4) of Section 145, Cr. P.C. and the Court has wide discretion to summon any person as a court witness for the purpose of arriving at a just decision of the case. But at the same time it is well settled that the power of the Court under Section 540, Cr. P.C. should not be used to favour one party or the other and that it should also not be resorted to, to enable a party to evade the provisions of Sub-section (4) of Section 145, Cr. P.C. If a person is, in reality, a witness for a party and that party has failed to We his affidavits at the proper time Court should not, by exercising its powers under Section 540, Cr. P.C. allow the evidence of that person to be brought on record without first insisting on the filing of an affidavit by him. It will be a matter for the Court of revision in each case to examine whether the power of the Court under Section 540, Cr. P.C. has been misused.
6. Before me Mr. Kanungo vehemently contended that the Naib Tahasildar was deposing about a matter which he knew in his personal (private) capacity, that lie was really a witness for the first party and instead of insisting on the first party filing his affidavit the Court went out of its way to help the first party by examining him as a court witness. There is no doubt much force in this contention. The record shows that when the first party wanted the Court to summon this witness that party did not ask the Court to summon him as a court witness. On the other hand, his petition dated 11-8-1962 indicates that he wanted this witness to be summoned as 'his' witness and undertook to pay his travelling and other expenses as he was a Government servant. The learned Magistrate also in his order dated 23-11-1962 has given no special reason as to why he agreed to examine this witness as a court witness. As he was present in Court that day he should have asked the party to file his affidavit first and then examined him as a witness for the party. But I find that the second party also did not object to his examination as a Court witness but merely cross-examined him. Hence, though I would agree with Mr. Kanungo that the Magistrate should not have examined this Naib Tahasildar as a court witness nevertheless I cannot say that his examination was without jurisdiction. The only right which the petitioners can legitimately claim is the right to adduce rebutting evidence in the shape of affidavits which may, at their discretion, be reinforced by examination of those witnesses who have sworn affidavits.
7. I would, therefore, while setting aside the final order of the learned Magistrate, remand the case for hearing either by the same Magistrate, or any other competent Magistrate to be selected by the District Magistrate with a direction that the second party (petitioners) should be given an opportunity to file further affidavits in view of the affidavit filed by Kunda Dei for the first party, and then dispose of the case according to law. The first party should not be given a further chance to file affidavits or examine witnesses, but the second party should be given an opportunity to file further affidavits? if any and also to examine those witnesses who have sworn affidavits on their behalf and the first party may then be permitted to cross-examine them. The case should then be disposed of according to law.