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Harihar Pati and ors. Vs. Bada Pitei Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1962CriLJ60
AppellantHarihar Pati and ors.
RespondentBada Pitei Naik and ors.
Cases ReferredS. Jodh Singh v. Mahant Bhasambar Dass
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant 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..........on their behalf, and that if summonses were issued to them they might enter appearance and file affidavits. the learned magistrate on 5th august 1980 heard the parties on the question as to whether under the provisions of section 145, cri.p.c. as amended be could issue summons to witnesses with a view to enable them to file affidavits. eventually he held that in view of the first proviso to sub-section (4) of section 145, cri.p.c. (as amended) he could summon only those witnesses who have already filed affidavits before him and that witnesses could not be summoned merely for the purpose of enabling them to file affidavits in the proceeding. his attention was invited to sub-section (9) of section 145, cri.p.c. but he observed that that sub-section cannot override the clear.....
Judgment:
ORDER

R.L. Narasimham, C.J.

1. This is a reference by the Sessions Judge of Mayurbhanj, recommending the setting aside of an order dated 5th August, 1960, passed by a First Class Magistrate of Keonjhargarh in a proceeding under Section 145, Cri.P.C. The material facts are as follows:

2. A proceeding under Section 145, Cri.P.C. was initiated on the 6th July 1960 by the Sub-Divisional Magistrate, Keonjhar, and it was transferred to the file of Shri P.C.S. Patra, first class Magistrate, for disposal. On the 3rd August 1960 the first party applied to that Magistrate for the issue of summons to some witnesses saying that on account of the threat by the second party they were not willing to come and swear affidavits on their behalf, and that if summonses were issued to them they might enter appearance and file affidavits. The learned Magistrate on 5th August 1980 heard the parties on the question as to whether under the provisions of Section 145, Cri.P.C. as amended be could issue summons to witnesses with a view to enable them to file affidavits. Eventually he held that in view of the first proviso to Sub-section (4) of Section 145, Cri.P.C. (as amended) he could summon only those witnesses who have already filed affidavits before him and that witnesses could not be summoned merely for the purpose of enabling them to file affidavits in the proceeding. His attention was invited to Sub-section (9) of Section 145, Cri.P.C. but he observed that that sub-section cannot override the clear language of Sub-section (4) of Section 145, Cri.P.C. The learned Sessions Judge considers this view of the Magistrate to be wrong and has therefore made this reference.

3. In Keshab Acharya v. Somehath Behera : AIR1958Ori79 I held that on a true construction of the first proviso to Sub-section (4) of Section 145, Cri.P.C. (as amended) a Magistrate has jurisdiction to examine as witnesses only those persons-whose affidavits have already been put in. In Bhagwat Singh v. State : AIR1959All763 , a similar view was taken. In Bahori v. Ghure a contrary view was taken, but I: find that in a very recent Division Bench decision of the Punjab High Court reported in S. Jodh Singh v. Mahant Bhasambar Dass the view taken by me and by the Allahabad High Court has been adopted and the view taken by the Rajasthan High Court has been dissented from and partly distinguished. In the aforesaid Punjab decision it was rightly observed that though Sub-sections (1) and (4) of Section 145, Cri.P.C. were amended, consequential amendments were not made to Sub-section (9) of Section 145, Cri.P.C. and that if Sub-section (9) of Section 145. Cri.P.C. be construed as giving a wide power to the Magistrate concerned to summon any witness, as suggested by the first party, then the first proviso to Sub-section (4) of Section 145, Cri.P.C. would become nugatory in most instances, as it was expressly inserted by the amendment of 1955 it ought to be given full effect. I see therefore no reason to change my previous view or to refer the matter to a larger Bench. The trying Magistrate was, therefore, right in rejecting the prayer of the first party to summon witnesses for the purpose of securing their affidavits. The affidavits should be put in first and then the question of summoning any of them would arise for consideration.

4. In there was a reference to the powers of the High Court under Section 540 Cri.P.C. But in the present case this question is somewhat academic, because here no prayer was made to the Court to summon the witnesses in exercise of its powers under that section. Indeed this question could not possibly arise at the stage because the parties had just then entered appearance before tile Magistrate and had not even put in the affidavits of their witnesses. The Court has undoubtedly wide powers under Section 540, Cri.P.C. to summon any witness at any stage of the enquiry for the ends of justice, but it is obvious that this power should not be used to enable party to circumvent the provisions of Sub-Section (4) of Section 145, Cri.P.C. It is a, special power that should be used sparingly on appropriate occasions.

5. For these reasons I think the learned Magistrate took the correct view and the reference made by the learned Sessions Judge was not proper. The reference is accordingly discharged and the order of trip Magistrate dated 5th August, 1960 is maintained.


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