Monoj Kumar Mukherjee J
1. This Rule is directed against a final order passed under Section 145(6) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by the learned Executive Magistrate, Calcutta.
2. On 18-10-78 the petitioner Abhimanyu Kumar Ray filed an application before the learned Executive Magistrate, Calcutta praying for an order under Section 144(2) of the Criminal P.C. restraining Nanakram Agarwala, the opposite party No. 1 herein, from disturbing the peaceful possession of the petitioner in respect of a room on the top floor of premises No. 12, Nirmal Lohia Lane, P. S. Burrabazar, which, according to the petitioner was in his peaceful possession and from which Nanakram was trying to oust him by force. On the same day, Nanakram filed a similar application praying for an order under Section 144(2) of the Code restraining the petitioner and others from disturbing his possession in respect of the self same room. The learned Magistrate sent both the petitions to the Officer-in-Charge, Burrabazar Police Station for an enquiry. On 11-11-78, the Officer-in-Charge submitted a report stating that there was an apprehension of the breach of the peace over the possession of the room in question as both Abhimanyu Kumar Ray and Nanakram Agarwala were claiming possession of the same. According to the police report, the petitioner was claimIng possession by virtue of a tenancy created in his favour by D. P. Jhunjhuni wala, the opposite party No. 2 herein, while Nanakram was claiming possession as a tenant under Kashi Prosad Jhunjhuniwala, the opposite party No. 3.
3. Being satisfied from the said police report that a dispute likely to cause a breach of the peace existed concerning the possession of the said room on the top (4th) floor of the premises No. 12, Nirmal Lohia Lane, Calcutta, the learned Magistrate by his order dated 11-11-1978 drew up a proceeding under Section 145(1) of the Code and directed all the above four parties to the dispute to appear in his Court on 18-11-78 and to put in written statements of their respective claims as respects the fact of actual possession. Pursuant to the said order the parties appeared before the learned Magistrate and filed their respective written statements. The learned Magistrate thereafter heard the parties and decided that the opposite party No. 1 was in possession of the disputed room at the relevant point of time and accordingly by the impugned order dated Jan. 13, 1979 he declared that the opposite party No. 1 was entitled to the possession thereof and forbade all disturbances of such possession until eviction in due course of law. In arriving at his decision the learned Magistrate relied upon the affidavits of the neighbouring shop owners and co-tenants of the premises in question, filed by the opposite party No. 1 as part of his written statement, and took note of the fact that no such person came to swear affidavit on behalf of the petitioner.
4. In assailing the impugned order Mr. Sankar Das Banerjee, the learned Counsel appearing for the petitioner firstly contended that the learned Magistrate erred in law in entertaining and relying upon the affidavits filed by the opposite party No. 1 and basing his order thereupon. According to Mr. Banerjee, under the Code, unlike the Criminal P.C. 1898 (hereinafter referred to as the old Code) evidence can be given only by examining witnesses in Court and not by filing their affidavits instead. Mr. Asoke Kumar Sen, the learned Counsel appearing for the opposite party No. 1, in repelling the above contention of Mr. Banerjee, argued that the affidavits were filed in the instant case as part of the written statement of the opposite party No. 1 and not as evidence as contemplated in Sub-section (4) of Section 145 of the Code and the learned Magistrate was fully justified in relying upon the affidavits as it was obligatory on his part to peruse the written statements put in by the parties. Mr. Sen further argued that the question of adducing evidence came in only after the written statements were perused and the parties were heard and if the parties did not choose to adduce any evidence, after they were so heard, the learned Magistrate could not compel the parties to adduce evidence. Mr. Sen contended that the written statements to be put in by the parties are to be in respect of their claims and Section 145(1) nowhere says that the written statements have to be of the parties. Mr. Sen argued that the affidavits, annexed to the written statement, were in respect of the claim of the opposite party No. 1 and therefore the learned Magistrate could legitimately entertain and rely upon the said affidavits not as evidence adduced by the parties under Sub-section (4) of Section 145 but as part of the written statement filed in respect of the claim of the opposite party No. 1. Mr. Balai Roy, the learned Counsel appearing for D. P. Jhunjhuniwala, from whom the petitioner claimed tenancy, supported the contention of Mr. Banerjee while Mr. Parsun Ghosh, the learned Counsel appearing for the opposite party Kashi Prosad Jhunjhuniwala, under whom Nanakram claimed his possession, supported the contention of Mr. Sen.
5. To appreciate the respective contentions of the parties it would be necessary to refer to the provisions of Section 145 as it stood previously and as it stands now. Before the amendment by Act 26 of 1955, the provisions of Section 145(1) and (4) under the old Code read as follows:
(1) Whenever a District Magistrate., Sub-Divisional Magistrate, or Magistrate of the First Class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by Pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respect the fact of actual possession of the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:
Provided that, if it appears to the Magistrate that any party has within 2 months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:Provided also, that, if the Magistrate considers the case one of emergency, ho may at any time attach the subject of dispute, pending his decision under this section.
6. By Act 26 of 1955 the following words were added to Sub-section (1) 'and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims' and Sub-section (4) was re-enacted as follows:
(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:
Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein:
Provided further that, if it appears to the Magistrate that any party has within 2 months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:
Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.'1
7. In the Code, Section 145 has been redrafted in almost identical language as that of the Code of 1898, as it was prior to its amendment by Act 26 of 1955. In suggesting the change the Law Commission observed 'the revised procedure (procedure envisaged by the amendment of Act 26 of 1955) does not appear to have worked satisfactorily in practice. It is said that stereotyped affidavits prepared by lawyers on the same lines as the written statements are put in both sides and these do not help the Magistrate very much in reaching a sound decision. Examination of witnesses under the first proviso cannot in most cases be avoided and consequently there is no saving of the Court's time. The main object of the amendment which is to get enquiry completed rapidly has not been achieved. On principle also it is better that the Magistrate is required to decide the important fact of possession on the basis of oral evidence given before him and decided by cross-examination in the presence of the parties. We therefore recommend that the procedure as it exists before 1955 should be restored.'
8. Evidently on the basis of the above recommendations of the Law Commission the amendments made in subsecs. (1) and (4) of Section 145, by Act 26 of 1955, have been deleted and the law as it stood prior to those amendments has been re-enacted. There is no manner of doubt therefore that under the law as it now stands, evidence, to be adduced by the parties in support of their claims, has to be by examining witnesses in Court and not by putting affidavits of such witnesses. Section 296 of the Code also does not permit such evidence being given by affidavits as evidence of possession in a proceeding under Section 145 of the Code is not of a formal character. It is in that context that Mr. Sen argued that the affidavits that were filed in the instant case were part of the written statements and not as 'evidence'' referred to in Sub-section (4). I am however unable to accept this contention of Mr. Sen.
9. Written statements required to be filed under Sub-section (1) by the parties concerned in the dispute, are to be in respect of those parties' claim as regards the fact of actual possession of the subject of dispute. The affidavits of some neighbouring people were filed in the instant case along with the written statement of the opposite party No. 1 as evidence of and in support of his claim. In para. 7 of the written statement filed by Nanakram it has been stated 'as follows:
As regards the lawful possession and user of kancha shed on the 4th floor room there are ample proof and evidence to be shown to the Court if a local enquiry be conducted. The neighbouring shop keepers and the co-tenants of the premises sworn two affidavits to the effect, the copies of which are annexed herewith and marked as Annexure 'D'.
10. The above averment made by Nanakram in his written statement also shows that he was using those affidavits as evidence and in proof of his claim that he was in actual physical possession of the disputed room but it could not be nor was it a statement of his claim. As under Section 145 the learned Magistrate could ask for and peruse the written statement of the respective claims of the parties concerned in the dispute only, the learned Magistrate could not look into the affidavits sworn by others in support, as evidence or in proof of such claim notwithstanding that they were annexed as a part of the written statement.
11. That apart, Mr. Sen's contention cannot be accepted on the well-known principle of interpretation of law that the provisions of statute shall not be evaded by shift or contrivance. Maxwell on the Interpretation of Statute while discussing this subject observed 12th Edition, Page 139:
To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner which it has prohibited or enjoined.' In the case of Jagir Singh v. Ranbir Singh reported in : 1979CriLJ318 a similar question was raised and decided. In that case the question arose as to whether the inhibition of Section 397(3) of the new Code could be avoided by treating a revisional application filed before the High Court as an application directed against the order of the Sessions Judge instead of as one against the order of the Magistrate and while repelling this contention, the Supreme Court observed at p. 321 of Cri LJ:what may not be done directly cannot be allowed to be done indirectly; that would be an evasion of the statute. It is a well-known principle of law that the provisions of Act of Parliament shall not be evaded by shift or contrivance Per Abbott, C.J. in Fox v. Bishop of Chester (1824) 2 B & C 635.
12. After referring to the above-quoted passage from Maxwell the Supreme Court held at p. 321 of Cri LJ:
when the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3), was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revisional application as directed against the Sessions Judge's order.
13. The above principle equally applied to the facts of the instant case. When evidence through affidavits is impermissible under Section 145, the embargo cannot be evaded by filing affidavits of witnesses as part of the written statement of the parties. The contention of Mr. Banerjee must therefore be upheld.
14. In reply to another contention raised by Mr. Banerjee that the petitioner was not given any opportunity to adduce evidence in accordance with the provisions of Sub-section (4) of Section 145 of the Code, Mr. Sen submitted that under the said sub-section it was for the petitioner to produce evidence and it was no part of the duty of the learned Magistrate to ask the petitioner to produce evidence. In support of his contention Mr. Sen relied upon the phrase 'receive such evidence as may be produced by them' appearing in the said sub-section. According to Mr. Sen, the above phrase explicitly shows that the Magistrate has to receive evidence that may be produced by the parties but it was no part of the duty of the Magistrate to ask the parties to adduce evidence. If Mr. Sen's contention is to be accepted the resulting effect will be, either (i) on the specified date and time mentioned in Sub-section (1) of Section 145, all the parties concerned in the dispute will have to file their written statements and the Magistrate will have to peruse the statements so put in, hear the parties and receive evidence for which each of the parties will have to keep their witnesses and documents in readiness without knowing the nature of claim raised by his adversary in his written statement and evidence to be adduced to refute the same, or (ii) each of the parties will have to keep his witnesses and documents in readiness on and from the date he filed his written statement in expectation that the learned Magistrate may, at any time, ask him to produce his evidence after the learned Magistrate had perused the written statement filed and hear the parties. Such a narrow interpretation will be against all principles of fair play and justice. In my considered view what the section enjoins is that though the choice is left to the parties to adduce evidence yet reasonable opportunities have to be given to the parties to produce their witnesses and documents if any.
15. In view of the foregoing discussions, it must be held that the impugned order was passed by the learned Magistrate in utter disregard of the prescribed procedure and as such is not sustainable in law. Accordingly the application succeeds and the Rule is made absolute. The order dated 13-1-79 is hereby set aside and the case is sent back to the learned Magistrate for a fresh enquiry in accordance with law and in the light of the observations made in the judgment.