L.S. Mehta, J.
1. There is agricultural land, Khasra No 30, measuring 12 Bighas and 15 Biswas, situate on the precincts of village Khalasi, Police Station, Mandawa, District Jhunjhunu. Joraram, party No 1 it appears, made first information report in the above Police Station against Harlal, party No. 2, under Section 447, I. P. C. on May 13, 1966, in respect of the above land. Thereafter Joraram submitted another application to the Superintendent of Police, Jhunjhunu, against Harlal and others under Sections 107 and 117, Cr. P. C., stating therein that there was apprehension of breach of the peace. That application was transmitted to the Station House Officer, Mandawa, for investigation. Party No. 2 Harlal also submitted an application against party No. 1 Joraram to the Sub-Divisional Magistrate, Jhunjhunu. under Sections 107 and 117, Cr. P. C. That application too was sent to the Station House Officer, Mandawa, for investigation. The Station House Officer inquired into the matter and reached the conclusion that there was likelihood of breach of the peace, as both the parties put up rival claims in respect of the disputed land.
On receipt of such report by the Sub-Divisional Magistrate, proceedings were started under Section 145, Cr. P. C. Preliminary order was issued on July 23, 1966. It was ordered by learned Sub-Divisional Magistrate that the parties should file their written statements, affidavits, documents, etc., in support of their respective claim over the disputed property. Next date fixed for the hearing was August 25. 1966. On that date parties put in their affidavits. That very day, party No. 2 Harlal made an application for summoning Ramjilal Patwari. He was ordered to be summoned.
The case was then adjourned to September 1, 1966. For that date neither Mst. Bhagwani nor the Patwari were summoned. The case was adjourned to September 19, 1966. It was further adjourned to September 21, 1966. That day Mst. Bhagwani asked for further time to file her written statement. Time was accordingly given and the case was ordered to be taken up on September 24, 1966. That day learned Sub-Divisional Magistrate, Jhunjhunu, was on tour and the case was ordered to be fixed on September 26, 1966. On this date, Mst. Bhagwani submitted her written statement. She also moved an application for summoning certain witnesses for filing affidavits, as they did not want to attend the court at her request. That application was rejected by the Sub-Divisional Magistrate on September 26, 1966, on the ground that there was no provision in Section 145, Cr. P. C., to summon witnesses at the request of a party and the case was ordered to be taken up on October 3, 1966. That day another application was submitted by Mst. Bhagwani, requesting the court to summon two of her witnesses, namely, Ramjilal and Jaswant Singh, as these Patwaries being Government servants would not attend the court at her request. However, the Sub-Divisional Magistrate was on tour that day. That application was, therefore, ordered to be taken up on his return from tour.
On October, 10, 1966, the application was rejected by the Sub-Divisional Magistrate and the case was ordered to be fixed for arguments to be addressed on October 29, 1966. The Sub-Divisional Magistrate rejected the prayer of Mst. Bhagwani on two grounds, namely, (1) that the application had been submitted after the evidence of the parties had been closed and (2) that there was no necessity to call the Patwaries. Against that order, a revision application was preferred in the court of learned Sessions Judge, Jhun.ihunu. The said Judge submitted a reference to this Court, stating that the Sub-Divisional Magistrate went wrong in re'fusing to summon Mst. Bhagwani's two Patwari witnesses. He, therefore, recommended that the impugned order dated September 26, 1966. passed by the Sub-Divisional Magistrate, Jhunjhunu, be directed to be quashed.
2. Learned counsel for party No. 1 argued that the Magistrate had jurisdiction under Section 145(9), Cr. P. C., to summon witnesses on the application of party No. 1 and as the two Patwaris, namely. Ramjilal and Jaswant Singh, were important witnesses, to show possession over the land in dispute, they ought to have been called by the court. Learned counsel further argued that the Sub-Divisional Magistrate did not apply his mind to the facts of the case, and arbitrarily rejected the application of Mst. Bhagwani and thus the discretion exercised by the court could not be said to be a judicious one.
Learned counsel, representing the side opposite, on the other hand, urged that the Sub-Divisional Magistrate, Jhunjhunu, exercised his jurisdiction and, therefore, the High Court should not interfere in that order. Learned counsel for party No. 2 further urged that Sub-section (9) of Section 145, Cr. P. C., is controlled by Sub-section (4) of Section 145, Cr. P. C. The Legislature according to him, amended Section 145, Cr. P. C, by Act No. 26 of 1955, so that parties could file only written statements, affidavits, documents, etc., in support of their rival claim and the court may decide the dispute under Section 145, Cr. P. C., expeditiously. He has cited certain authorities in support of his comments.
3. The Sub-Divisional Magistrate wrote in his order that the application of Mst. Bhagwani was made after the closure of the evidence and that he did not think it proper at that stage to allow her application. The Magistrate has nowhere stated that the two witnesses, Ramjilal and Jaswant Singh Patwaries, were redundant or that the prayer for summoning them was made with mala fide intention. Mst. Bhagwani submitted two applications, one on October 3, 1966, and the other on October 4, 1966. On October 3, 1966, the evidence of the parties was not closed, as on that day party No. 1 was required to put in affidavits of witnesses. That apart, the Sub-Divisional Magistrate was not at the headquarters on October 3, 1966. Similarly, on October 4, 1966, the Sub-Divisional Magistrate, was on tour. The case was fixed for October 10, 1966. and on that date the Sub-Divisional Magistrate dismissed the application on the above grounds. It is thus apparent that the factual position that the parties' evidence had been closed, on October 3, 1966, was wrongly mentioned by the Sub-Divisional Magistrate.
4. Assuming that the application was made by Mst. Bhagwani for summoning the aforesaid two witnesses after the closure of the evidence, the Sub-Divisional Magistrate ought to have considered that application in the light of Sub-section (9) of Section 145 Sub-section (9) reads as follows:
'(9) The Magistrate, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.'
The words 'at any stage of the proceedings'' and 'on the application of either party' in Sub-section (9) of Section 145, Cr. P. C., are significant. It is plain from a perusal of Sub-section (9) that a party can submit an application at any stage of the proceedings. There is no bar that a party is not entitled to submit appli-cation after the closure of the evidence. It appears that the Magistrate has taken an arbitrary decision without looking in-to the facts of the case and without ap-plying his mind as to why Mst. Bhagwani wanted to summon the two Government employees. The impugned order, therefore, cannot be said to be judicious.
5. Now the question arises whether or not the Magistrate had power to allow the application under Section 145(9), Cr. P. C. Section 145(9), as quoted supra, is self-contained. Under Section 540, Cr. P. C. witnesses can be called for ends of justice and such witnesses would not be called as a party's witnesses. Under Section 145(9), Cr. P. C., witnesses, if summoned, would be a party's witnesses as the words 'on the application of either party' signify, Sub-s. (9) of Section 145, Cr. P. C.,. cannot be said to be subject to Sub-section (4) of Section 145, Cr. P. C. Sub-section (4) says that parties can file statements, affidavits, documents etc. Discretion is given to the Magistrate by proviso to subsection (4) to summon and examine any person whose affidavit has been put in so AS to ascertain the facts contained therein.
6. There are two sets of opinion in regard to this interpretation of Sub-sections (4) and (9) of Section 145, Cr. P. C. One view is contained in Keshab Acharya v. Somenath Bahera, AIR 1958 Orissa 79, Bhagwat Singh v. State, AIR 1959 All 763, S. Jodh Singh v. Mahant Bhagambar Das, AIR 1961 Punj 187, and Ravenna v. Nara-yana Murthy, AIR 1957 Mys 43. In these decisions, it has been held that Sub-section (9) of Section 145, Cr. P. C., is subject to Sub-section (4) of that section. According to this view under Sub-section (9), a Magistrate can summon only those witnesses who have filed affidavits. Reasons given in the above quoted authorities are two-fold The first reason is that subsection (9) is more or less redundant when there is definite provision in Sub-section (4) of Section 145, Cr. P. C. The second reasoning is that the very object of amending Section 145, by Act No. 26 of 1955, would be defeated if witnesses are to be orally examined by the parties in accordance with Sub-section (9) of Section 145, Cr. P. C The object of the amendment was to shorten the proceedings under Section 145, Cr. P. C. If the view that a party had a right under Section 145, Cr. P. C. to apply for summoning witnesses, whose affidavits were not filed or accepted, the very purport of the amendment would be nullified and the procedure, instead of being shortened, would become doubly cumbersome.
There is another set of opinion which is found in Ghutu Akanda v, Somser Ali, AIR 1964 Assam 105. Mirza Mohd. Aziz v. Safdar Hussain, AIR 1962 All 68, Challamuthu Padayachi v. Rajavel, AIR 1964 Mad 263, Kanhaiyalal v. Devisingh, AIR 1961 Madh Pra 302, Sheo Kumar Dubey v. Tribhuwan Rai. AIR 1965 Fat 25, Bahori v. Ghure, AIR 1960 Raj 15. In these cases, it was held that Sub-section (9) is quite independent and distinct of Sub-section (4) of Section 145, Cr. P. C. According to this set of opinion, the Magistrate has jurisdiction to call witnesses, who had not filed affidavits.
7. Wilh respect, I agree with the lat-ter opinion. If it is held that Sub-section (9) is controlled by Sub-section (4) of Section 145, Cr. P. C., there was no sense in retaining Sub-section (9). It cannot be said that Sub-section (9) has been overruled by Sub-section (4). If Sub-section (9) has been left out in-tact or untouched, it must be given its full meaning. This provision, it appears, has been retained to meet certain contingencies and not due to oversight. Assuming that some witnesses are Government servants, and they are in the know of disputes arising under Section 145, Cr. P. C., and if these witnesses are not available to the parties, there is no other alternative for the party concerned but to apply to the court to summon them. To meet out such a contingency, the provision embodied in Sub-section (9) has been retained. The words 'on the application of the either party' in Sub-section (9) are significant. These words indicate that the parties have to show reasons, and if the reasrns are convincing, a Magistrate can summon witnesses.
Again, there is the provision under Section 510, Cr. P. C., under which any court may at any stage of the proceeding summon any person as a witness if his evidence appears to it essential to the just decision of the case. This Section too has been left intact. Therefore, the first set of opinion does not appear to me to be convincing that the Magistrate could call only those witnesses who filed affidavits. The court can equally summon witnesses under Section 540, Cr. P. C., as also under S 145(9), Cr. P. C. It is true that the Magistrate is not bound to comply with the request of the party, but he has to exercise his discretion judiciously and not arbitrarily. The Magistrate should ordinarily accede to the request to summon and examine a Government servant, who is quite competent to speak about the disputed position of the land. On the other hand, he may refuse to summon such witnesses at the request of a party which does not care to file its written statement, documents, affidavits etc. In either case, the discretion lies with the Magistrate. My considered opinion, therefore, is that a Magistrate may, at the request of a party, summon witnesses and examine them independently of Sub-section (4) of Section 145 Cr. P. C.
8. In the result, the impugned order oflearned Sub-Divisional Magistrate, Jhun-jhunu, refusing to summon and examinethe two Government servants, namely,Ramjilal and Jaswant Singh, is set aside.The said Magistrate should consider thepetition, submitted by Mst. Bhagwantand, if he finds that the petitioner hasmade out a case for the examination ofthe aforesaid persons, he should not hesitate in summoning and examining themunder Sub-section (9) of Section 145 Cr. P. C.The reference is accordingly accepted.