Bisheshar Prasad vs Mahadeo and Another

W. Broome, J.—This Criminal revision is directed against the orders of a first class Magistrate of Basti deciding a case u/s 145 Code of Criminal Procedure in favour of the opposite party.

The argument advanced is that the Magistrate has exceeded his jurisdiction by examining a witness u/s 540 Code of Criminal Procedure and that the proceedings are vitiated by this illegality. In this connection reliance is placed on the decision of a single Judge of this Court in the case of Bhagwat Singh and Others Vs. State and Another, in which it was held that a Magistrate who examined witnesses in proceedings u/s 145 Code of Criminal Procedure, without their having filed affidavits, acted in contravention of the first proviso to sub-Section (4) of that section, which permits him only to "summon and examine any person whose affidavit has been put in." I have no quarrel with the principle enunciated in that ruling, as applied in the case that was being considered. That was a case in which the parties had been allowed to examine witnesses who had not put in affidavits; and I am in agreement with the learned Judge in holding that the procedure adopted was clearly not warranted by the provisions of Section 145 code of Criminal Procedure as now amended. I do not however, interpret the ruling as meaning that the powers of Magistrate u/s 540 Code of Criminal Procedure are in any way curtailed or abrogated. Section 540 empowers a court at any stage of "any inquiry, trial or other proceeding under this Code" to summon witnesses whose evidence appears to be essential for the just decision of the case; and the words 'other proceedings under this Code" clearly include proceeding u/s 155 The First proviso to sub S. (4), Section 145 no doubt precludes a Magistrate from summoning witnesses on behalf of the parties to the dispute without the parties having first put in the affidavits of those witnesses; but it does not to my mind prevent him from exercising his powers u/s 540 and summoning and examining other persons as witnesses suo motu, if he finds it necessary for the just decision of the case. To hold otherwise would unjustifiably restrict the powers of Magistrates and hamper them in the proper discharge of their functions. In the present case the Magistrate decided that it was necessary to examine the Lekhpal (who had not been cited as a witness by either party) in order to decide which of the two conflicting extracts from the Khasra for the same year was to be relied upon; and I saw no reason why he should not be allowed to do so in exercise of his powers u/s 540 Code of Criminal Procedure. I am fortified in this view by the decision of the Rajasthan High Court in Kishori Lal Vs. Rex, in which it has been held:

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.

I am satisfied therefore that no illegality has been committed in the present case and accordingly reject this revision application.