1. In Criminal Revision No. 17 of 197i6, which came up for hearing before one of us (Anand, J.) an argument was raised on behalf of the petitioner that the affidavits sworn before a Magistrate who was not seized of the case could not be relied upon and treated as evidence in proceedings under Section 145, Cr. P. C. The argument found support from the decision of a single Judge of this Court (Mir, J.) in a case reported in 1977 Kash LJ 428. The observation made in 1977 Kash LJ 428 was based upon a judgment of the Supreme Court reported in : 1977CriLJ249 . Doubt was, however, expressed on the soundness of the proposition of law enunciated in the aforesaid decision of (Mir, J.) by learned Counsel for the respondent. It was argued that Section 539 of the State Code of Criminal Procedure and Section 539 of the Cr. P. C. (Central) were differently worded and, therefore, the Supreme Court decision had no application to the law for the time being in force in the State and as such the judgment of Mir, J. required reconsideration. Being of the view that the points raised were of importance and the view expressed by Mir, J. in 1977 Kash LJ 428, required reconsideration, Anand, J., referred the case to the Division Bench for an authoritative pronouncement. That is how the question has come up before this Division Bench.
2. In order to appreciate the rival arguments, it will be advantageous to first reproduce the relevant sections of the respective Code:
Section 539 of the State Code reads as under:539. Courts and persons before whom affidavits may be sworn. - 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.
Section 539 of the Cr. P. C. (Central) provides as follows:
539. Affidavits and affirmations to be used before any High Court or any officer of such court may be sworn and affirmed before such court or the (clerk of the State) or any Commissioner or other person appointed by such Court for that purpose, or any Judge or any Commissioner for taking affidavits in any court of record in (India) or any Commissioner to administer oaths in England or Ireland or any Magistrate authorised to take affidavits or affirmations in Scotland.
On consideration of the matter, we are of the opinion that the argument of the learned Counsel for the petitioner that the affidavit sworn before another Magistrate does not constitute evidence in proceedings under Section 145, Cr. P. C. even in this state is devoid of merit. The restriction embodied in the Central Code has riot been incorporated in the State. As a matter of fact, Shri R. N. Kaul, learned Counsel for the petitioner has before us frankly conceded that in view of the express phraseology of Section 539 as it exists in the State Code of Criminal Procedure, the argument canvassed by him is not sustainable and that affidavits sworn before Magistrate not seized of the case can also be read in evidence in this State.
3. A perusal of the judgment of Mir J., shows that the distinction between the phraseology of Section 539 of the State Cr, P, C. and in the Central Cr. P. C. was not brought to his Lordship's notice and it was perhaps for this reason that his Lordship while taking the view that the affidavits, were not admissible in that particular case, was influenced by the language employed in Section 539 as it exists in the Cr. P. C. (Central) and reliance was placed on the Supreme Court judgment (Supra). It is, however, quite manifest that the words used in Section 539 of the State Code leave no room for doubt that an affidavit sworn before a Magistrate (other than the one trying the case) is also valid affidavit and the same can be pressed into service in proceedings under Section 145, Cr. P. C. subject to the exceptions as are laid down in Section 539 itself and in Section 539-A, Cr. P, C.
4. Our attention is also invited to a decision given by Mufti J., in Criminal Revision No. 13 of 1979. Bashir Ahmad Bhat v. Gh. Qadir Mir decided on May, 25, 1979 reported in 1980 Cri LJ 152 (J & K). In this decision the view taken by the Hon'ble Judge is in consonance with the view that we have taken in the case in hand and is contrary to the view expressed by Mir J.
5. For the aforesaid reasons, we hold that the view expressed by Mir J. in 1977 Kash LJ 428, does not lay down correct law on the subject so far as this State is concerned and the same is hereby overruled.
6. The reference is answered accordingly. The case will now go back to the learned single Judge, who will decide the main revision petition.