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Ahad Joo Sarwal and ors. Vs. Nabir Joo Bicchu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1970CriLJ1167
AppellantAhad Joo Sarwal and ors.
RespondentNabir Joo Bicchu and ors.
Cases ReferredLeitanthem Bidhu Singh v. Khangirakpam Ibobi Singh
Excerpt:
- .....affidavits should be attested by a particular authority, person or court. the provision in the state criminal procedure code relating to the mode and method of swearing affidavits are contained in sections 539, 539-a and 539-aa, criminal p. c., which run as follows:affidavits and affirmations to be used before any court in the state may be sworn and affirmed before such court or any magistrate or other court in the state, but if the affidavit or affirmation is made outside the limits of the state, it may be sworn or affirmed before any tribunal competent in that behalf according to the law of locality where the affidavit or affirmation is made.when any application is made to any court in the course of any enquiry, trial, or other proceedings, under this code, and the allegations are.....
Judgment:

Jaswant Singh, J.

1. This is a reference made by the learned Sessions Judge, Anantnag, recommending that the order dated 24-12-1968 passed by the Chief Judicial Magistrate, Anantnag, in proceeding under Section 145, Criminal P. C. be set aside as he illegally declined to consider the affidavit evidence produced by the parties (on the ground that the affidavits not having been sworn before him were inadmissible and he be directed to pass fresh orders after considering the affidavits filed on behalf of the parties.)

2. The learned Counsel for the petitioner has submitted that there is nothing in the Code of Criminal Procedure of our State to show that only those affidavits which are sworn before the Magistrate who is seized of the matter under Section 145, Criminal P. C. can be received as evidence and the observation of the learned Chief Judicial Magistrate to the affect that the affidavits not having been sworn before him were inadmissible in evidence is wholly base-less and erroneous.

3. The short question for determination in this reference is as to whether for purposes of proceeding under Section 145, Criminal P. C. it is necessary that the affidavits by witnesses and/or parties to those proceedings should be sworn before the very magistrate who is seized of the matter. Section 145, Criminal P. C. in so far as it is relevant for this case reads:

Whenever a District Magistrate, sub-divisional Magistrate, or a 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 the time to be fixed by such Magistrate, and to put in written statement of their respective claims as respect the fact of actual possession of the subject 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 claim).

* * *The Magistrate shall then without reference to the merits or the claim of any 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 enquiry as far as may be practicable within a period of two months from the date of 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...

A plain reading of the provision is enough to show that it does not make it obligatory that the affidavits put in by the parties in support of their respective claims should be sworn before a particular authority, person or Court. In fact, it does not prescribe the manner in which the affidavits so put in are to be sworn or attested.

4. Now let us see whether there is any other provision in law in force in the State requiring that the aforesaid affidavits should be attested by a particular authority, person or Court. The provision in the State Criminal Procedure Code relating to the mode and method of swearing affidavits are contained in Sections 539, 539-A and 539-AA, Criminal P. C., which run as follows:

Affidavits and affirmations to be used before any Court in the State may be sworn and affirmed before such Court or any Magistrate or other Court in the State, but if the affidavit or affirmation is made outside the limits of the State, it may be sworn or affirmed before any tribunal competent in that behalf according to the law of locality where the affidavit or affirmation is made.

When any application is made to any Court in the course of any enquiry, trial, or other proceedings, under this Code, and the allegations are made therein respecting any public servant the applicant may give evidence of the facts alleged in the application by affidavit and the Court may if it thinks fit order the evidence relating to such-facts be so given.

Affidavit under this section shall be confined to and shall state separately such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable grounds to believe to be true and in the later case the deponent shall clearly state the grounds of such belief.

539-AA. (1) An affidavit to be used before any Court other than a High Court under Section 510-A or Section 539-A may be sworn or affirmed in the manner prescribed in Section 539 or before any Magistrate,

(2) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended.

A perusal of the above provisions also makes it clear that it is not necessary that the affidavits filed in proceedings under Section 145, Criminal P, C., should be sworn before the Magistrate before whom such proceedings are pending. The use of the words 'before such Court or any Magistrate or other Court in the State' in Section 539, Criminal P. C., are significant. These words clearly give an option to have the affidavits made by the deponents within the limits of the State to be sworn before such Court or any Magistrate or other Court in the State. It is only in respect of an affidavit made outside the limits of the State that it is required that it should be sworn before the Tribunal competent in that behalf according to the law of the place where the affidavit is made.

5. No ruling has been cited at the bar which can in view of the state of law in force in the State can be said to have a bearing on the matter in question. The rulings cited before us by the learned Counsel for the respondents relate to Sections 539 and 539-A A of the Criminal P. C. 1898, which is in force in the rest of India.

6. There is another compelling reason which impels to hold that the affidavits filed in proceedings under Section 145, Criminal P. C., need not be sworn before or attested by the very Magistrate before whom such proceedings are pending. The reason is that the enquiry relating to the question of possession is a summary one and the amendments in Section 145, Criminal P. C., permitting the filing and use of affidavits were introduced by Act No. XLII of 1956 with a view to avoid undue delay, shorten the procedure and expedite the disposal of the matter. If in spite of these amendments the witnesses are still required to swear their affidavits before the Magistrate before whom the proceedings are pending, it would completely nullify the object for which the aforesaid amendments were made.

7. There is also nothing in the Rules framed for the guidance of Criminal Courts subordinate to the High Court which may lead to a different conclusion.

8. There is also nothing in the Judicial Oath Rules 1950 (1894) which may point to the fact that the affidavits to be used in proceedings under Section 145, Criminal P. C., cannot be sworn before a Magistrate or Court other than the one before whom or in which such proceedings are pending. Rule 3 of the Judicial Oath Rules which relates to the authorities who are competent to administer oaths and affirmations reads:

All Courts and persons having by law or consent of parties, authority to receive evidence, are authorised to administer by themselves or by an officer empowered by them in this behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred on them respectively by law.

The above rule clearly lays down that all Courts and persons who have by law or consent of the parties power to receive evidence can administer oaths and affirmations.

9. While dealing with the contention that under Section 4 of Indian Oaths Act, (which corresponds to Rule 3 of our Judicial Oath Rules), it is only in the discharge of the duty or in exercise of the powers imposed or conferred on them respectively by law that Courts as well as persons are authorised to administer oaths and affirmations and that, therefore, a Magistrate who has no authority to receive evidence in any matter or upon! whom no power is imposed or conferred by law, has no authority to administer oath or affirmation. Jagannadha Charyulu J. C. observed in Leitanthem Bidhu Singh v. Khangirakpam Ibobi Singh AIR 1969 Manipur 3 as follows:

The words 'having authority to receive evidence' in Clause (a) of Section 4 of the Oaths Act, cannot be restricted to the authority of the Court to receive evidence in the particular case, to which the evidence relates. But it refers to the jurisdiction and power of the Court to receive evidence in any case, which jurisdiction or authority must be conferred upon the Court either by law or by consent of the parties. Third Class Magistrate has by law the authority to receive evidence, he is competent to administer oaths and affirmations to every one under Section 4 of the Indian Oaths Act. If the parties are directed to swear before the concerned First Class Magistrate who is enquiring into the case, then it will only be a needless waste of time for him and the proceedings are bound to drag on. The witnesses who are out of station and who cannot be conveniently called to the Court will have to be compelled to appear before the concerned Magistrate or a Magistrate authorised by the concerned Magistrate to administer the oath.

10. For the foregoing reasons we are of the opinion that the Magistrate exercising jurisdiction under Section 145, Criminal P. C. can use the affidavits sworn before or attested by any Magistrate other than himself. According to the observations of the learned Chief Judicial Magistrate that it is well established that the affidavits attested by any Magistrate other than the Magistrate seized of the matter are in. admissible in evidence, cannot be up-held. As the learned Chief Judicial Magistrate has illegally discarded the affidavits filed by the parties, the order made by him cannot be upheld.

11. We, therefore, allow this reference, set aside the order passed by the Chief Judicial Magistrate and remand the case to him for disposal in accordance with law after deciding whether the provisions of Section 145, Criminal P. C., are attracted in this case and if so whether the petitioner is entitled to the relief sought for by him on the basis of the evidence adduced by the parties.


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