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Kapuru and anr. Vs. Gulaba - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Ref. No. 9 of 1961
Judge
Reported inAIR1962HP5
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 145(1), 145(4), 145(9) and 540
AppellantKapuru and anr.
RespondentGulaba
Appellant Advocate A.C. Sud, Adv.; Kedar Iswar, Govt. Adv.
Respondent AdvocateParty in person
DispositionReference rejected
Cases ReferredBahori v. Ghure
Excerpt:
.....as required by section 145 (1) - parties to proceeding did not file any affidavit and instead examined witnesses in support of their respective cases - sessions judge was of opinion that said procedure was in contravention of section 145 (1) - in absence of any express provision prohibiting oral examination it cannot be said that oral examination of witness will vitiate proceeding even if court allows such examination - as per section 145 court should have power to examine any witness at any stage of case irrespective of fact whether his affidavit has been filed or not provided that examination of such witness considered by it to be fit and proper - proceedings not vitiated on account of fact that witnesses whose affidavit had not been filed were examined orally - reference..........of the allahabad high court). 4. the facts of the aforesaid punjab case were that the parties filed affidavits of witnesses and the respondents made an application for summoning 51 witnesses out of whom 10 were summoned by the learned magistrate. a revision was filed against that order and it was contended that the trial magistrate had no jurisdiction to summon witnesses whose affidavits had not been filed and following the aforesaid allahabad case the contention was accepted. 5. prior to the amendment of section 145, cri, p. c., by the amendment act no. 26 of 1955 witnesses used to be examined orally and it was not open to a party to file an affidavit of a person proposed to be examined as a witness. with a view to expedite the disposal of the proceedings the section was amended.....
Judgment:
ORDER

C.B. Capoor, J.

1. This referencee has been made by the learned Sessions Judge, Mahasu, Sirmur, Bilaspur and Kinnaur Sessions Division, recommending that the order of the learned Magistrate first class, Arki, in a case under section 145, Cri. P. C., be set aside and the case remanded to him for passing fresh orders after making proper inquiry as required by Sub-section (1) of Section 145, Cri. P. C.

2. It appears that the parties to the proceeding did not file any affidavit and instead examined Witnesses in support of their respective cases. The learned Sessions Judge was of the opinion that the aforesaid procedure was in contravention of Sub-section (1) of Section 145, Cri. P. C., and the order of the learned Magistrate was liable to be quashed on that score. In arriving at that conclusion he relied upon the cases reported in AIR 1959 (1955 is obviously a mistake) All 763, Bhagwat Singh v. State and S. Jodh Singh v. Bhagambar Dass, 63 Pun LR 63: (AIR 1961 Punj 187).

3. Ira the AIR 1959 All 763 case the opposite parties did not file any affidavit and got summonses issued for four witnesses and examined them. The Magistrate found that the opposite parties were in possession of the disputed land. An application in revision was filed by the applicants and it was contended that the Magistrate had no jurisdiction to examine witnesses orally and the proceeding was vitiated on that ground. This contention found favour with M.C. Desai, J. (now the Chief Justice of the Allahabad High Court).

4. The facts of the aforesaid Punjab case were that the parties filed affidavits of witnesses and the respondents made an application for summoning 51 witnesses out of whom 10 were summoned by the learned Magistrate. A revision was filed against that order and it was contended that the trial Magistrate had no jurisdiction to summon witnesses whose affidavits had not been filed and following the aforesaid Allahabad case the contention was accepted.

5. Prior to the amendment of Section 145, Cri, P. C., by the Amendment Act No. 26 of 1955 witnesses used to be examined orally and it was not open to a party to file an affidavit of a person proposed to be examined as a witness. With a view to expedite the disposal of the proceedings the section was amended and the relevant portion of it runs as bellows

'(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 respects the fact of actual possession of the subjects of dispute 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.'

'(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 two months next before the date of such order been forcibly and wrongfuly 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.'

6. It is significant that the amended section does not provide that the filing of affidavits will be the only method of proof available to a party to a proceeding and that witnesses cannot be orally examined even if the Court allows the parties or for the matter of that any party to a proceeding to examine witnesses orally. There is no express prohibition for the oral examination of witnesses. The object underlying the provision for the filing of affidavits of witnesses was expedition in the disposal of cases and the change in the law was not due to any defect in the system of oral examination of witnesses. It cannot be denied that the oral examination which consists of examination-in-chief, cross-examination and re-examination of a witnessis a very good and tried method for ascertaining the truth of the facts alleged and no prejudice can besaid to be caused to either party because of the oralexamination of witnesses. In the absence of anyexpress provision prohibiting the oral examinationI find it very difficult to hold that the oral examination of a witness will vitiate the proceeding evenif the Court allows such examination.

7. Section 540, Cri. P. C., clearly empowers a Court to summon and examine or recall or re-examine any person as a witness if his evidence appears to it essential to the just decision of the case and there is nothing in Section 145, Cr. P. C., to restrict or abrogate that power. If a Court allows a person to be orally examined in a proceeding under Section 145, Cr. P. C., even though no affidavit of that person has been filed it should be deemed to have acted in the exercise of its powers under Section 540, Cr. P. C. Sub-section (9) of Section 145, Cr. P. C. runs as below:

'The Magistrate may if he thinks fit, at anystage of the proceedings under this section, on theapplication of either party issue a summons to anywitness directing him to attend or to produce anydocument or thing'.

8. There is a conflict of opinion on the question as to whether the aforesaid sub-section merely prescribes the procedure for procuring the attendance of the witnesses or also empowers the Court to examine and summon a witness even though his affidavit may not have been filed.

9. In the case of Bahori v. Ghure, reported in AIR 1960 Raj 15, a patwari was examined as a Court witness and the question arose as to whether such examination was countenanced by the provisions of the Code and it was held that the proviso to Sub-section (4) of Section 145 is merely an enabling provision of law which entitles the Magistrate to summon and examine any of the persons whose affidavits have been filed on behalf of the parties if he so desires in order to decide the question of possession; but the proviso does not preclude the Magistrate from calling as a witness any other person that he thinks proper to examine and that the sub-section; contemplates such a situation and that if on the application of either party to the proceeding the Magistrate can summon and examine any witness he can do so equally in the ends of justice of his own accord and indeed Section 540 of the Code empowers the Magistrate like any Court to do so.

10. In the AIR 1959 All 763 and 63 Pun LR 63: (AIR 1961 Punj 187) cases, referred to above, it was held that Sub-section (9) merely prescribed the procedure for procuring the attendance of witnesses whose affidavits were not on record and support for that view was sought from the first proviso to Sub-section (1) of Section 145. That proviso, it has already been seen, empowers a Magistrate to summon and examine any person whose affidavit has been put in as to the facts contained therein. It does not preclude a Magistrate from examining a witness whose affidavit has not been filed. The power to examine a witness whose examination is considered to be fit by the Magistrate concerned is implicit in the aforesaid sub-section. There is nothing in the sub-section to suggest that it is confined to the examination and procurement of attendance of those witnesses only whose affidavits are on the record.

If the intention of the Legislature had been that the Magistrate had the power to examine those witnesses only whose affidavits had been filed the aforesaid sub-section would have been deleted by the Amendment Act No. 26 of 1955 as the purpose of the Legislature would have been served by the first proviso to Sub-section (4) which empowered the Magistrate if he so thought fit to summon and examine any person whose affidavit had been put in. In other words, in view of the aforesaid proviso it was no longer necessary to retain on the statute book Sub-section (9). The continued existence of that sub-section shows that it was not a surplusage. The difficulty caused by the continued existence of that sub-section was noticed by the learned Judges who decided the 63 Pun LR 63: (AIR 1961 Punj 187) case supra and they made the following observations:

'Though we feel that the continued existence of Sub-section (9) in its present form is certainly not very apt and requires looking into by the Legislature yet we have no doubt in our mind that it gives no right to a party to summon or examine any witness orally apart from the right given to it to adduce evidence as detailed in Sub-section (1) and that oral examination of the witness must be confined within the limits imposed by the newly added proviso, namely the first proviso to Sub-section (4).'

11. It is to be presumed that the Legislature does not use any word which is surplus or redundant and when the language of an enactment is plain and admits of but one meaning

'such language best declares, without more, the intention of the lawgiver and is decisive of it. The rule of construction is to intend the Legislature to have meant what they have actually expressed. It matters not, in such a case, what the consequences may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained by the Court as to what is just or expedient...... .However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands according to the real sense of the words', vide Maxwell on Interpretation of Statutes, Ninth Edition, pages 3 and 4.

12. It is thus a primary rule of interpretation of statutes that the intention of the Legislature has to be gathered from the words used by it and that unless the Words used are ambiguous or lead to absurd or anomalous conclusion effect has to be given to each and every word used and if this rule of interpretation is followed in construing the provisions of Section 145, Cr. P. C., it would be clear that the intention of the Legislature was that the Court should have the power to examine any witness atany stage of the case irrespective of the fact whether his affidavit has been filed or not provided that the examination of such a witness is considered by it to be fit and proper.

13. I am further of the opinion that even if Sub-section (9) is held to be merely procedural and not as arming the Magistrate with the power to examine a witness such a power is vested in a Magistrate under Section 540, Cr. P. C. and if the Court allows the oral examination of witnesses whose affidavits have not been filed the proceeding with not be illegal or vitiated.

14. I am, therefore, of the opinion that the proceedings in the instant case were motvitiated on account of the fact that witnesses whose affidavits had not been filed were examined orally.

15. The reference is, in consequence, rejected.


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