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B. Jayarama Mudaliar Vs. Bhoomi Ammal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1964CriLJ600
AppellantB. Jayarama Mudaliar
RespondentBhoomi Ammal
Excerpt:
- .....the sub divisional magistrate, viliupuram will have to be allowed on m* short point that the learned magistrate, in deciding tnts question of dispute concerning user of immoveauie property under section 147 cri. (p. c. has acted upon the evidence oi affidavits, which does not appear to be warranted by me terms of the section. the learned magistrate apparently thought, upon the analogy in the specific provision in section 145(1) cri. p. c, and the employment of the words 'ana the provisions of section 145 shall, ;as far as may be, be applicable' in section 147 (1-a) cri. p. c, that he could receive affidavit evidence even in proceedings unaer the laner section. the very point came up before a single judge of the patna high court in manickchand v. unubaneswar, flm 1961 pat 278. the.....
Judgment:
ORDER

Anantanarayanan, J.

1. This revision proceeding by the tirst respondent in, M. IC. No. 72 of 1952 before the Sub Divisional Magistrate, Viliupuram will have to be allowed on m* short point that the learned Magistrate, in deciding tnts question of dispute concerning user of immoveauie property under Section 147 Cri. (P. C. has acted upon the evidence oi affidavits, which does not appear to be warranted by me terms of the section. The learned Magistrate apparently thought, upon the analogy in the specific provision in Section 145(1) Cri. P. C, and the employment of the words 'ana the provisions of Section 145 shall, ;as far as may be, be applicable' in Section 147 (1-A) Cri. P. C, that he could receive affidavit evidence even in proceedings unaer the laner section. The very point came up before a single Judge of the Patna High Court in Manickchand v. unubaneswar, flm 1961 Pat 278. The learned Judge pointed out tnat Sub-section (1) of Section 145 makes specific provision that the parties should be called upon to adduce evidence by attiaavits, while Sub-section (1-A) of Section 147 is lit very different terms that the magistrate shall receive all such evidence as may be produced by the respective parties. The learned Juagu then proceeded to express his view that the Magistrate- naa no jurisdiction in thai light of the circumscribed scope of Section 147(1--A) contrasted to Section 145 Cri. P. C. to can upon parties to file affidavits in a proceeding under Section 147 Cri. P. C. or to accept and act upon such affidavit evidence. It appears to me that this view of the respective scope ot the two sections is justified, for, had the Legislature intended that even in proceedings under Section 147 Cri. P. C. affidavit evidence could be competently received, the necessary words would have been introduced in Section 147(1-A) Cri. P. C. which is not the case.

2. Under the circumstances, since the Magistrate' has received and acted upon evidence, which could not be legally received, within the scope of the proceeding before him, I am constrained to permit the revision proceeding to quash the order of the learned Magistrate, and to remit tne proceeding for further disposal according to law. The learned Magistrate must now hear the evidence adduced by ins parties and not affidavit evidence and act according to the tenor of Section 147 Cri. P.C.


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