Challamuthu Padayachi and Others vs Rajavel

Kailasam, J.—This petition is filed to revise the order of the Sub-Divisional Magistrate, Ariyalur, issuing summons to witnesses to give

evidence in Section 145, Crl. P. C. proceedings. The petitioners are B party in Section 145 proceedings in the lower Court. The A party filed an

application for issue of summons to karnam and the Sub-Inspector of Police to give evidence and it was ordered by the trial Court. The contention

of the learned counsel for the petitioners is that the lower Court is not entitled to examine persons as witnesses, who have not filed affidavits u/s

145(4), Crl. P. C.

Section 145, Crl. P. C. was amended by amendment Act XXVI of 1955: u/s 145, as it stood before the amendment, it was found that the

enquiry took considerable time. In order to obviate the delay, an amendment was introduced to Section 145. According to the old section

whenever the case was a dispute likely to cause a breach of the peace concerning a land, the Magistrate was to make an order requiring the

parties to attend Court and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

After receiving the written statements the Magistrate was required to peruse the statements, hear the parties, receive all such evidence as may be

produced by them respectively, consider the effect of such evidence, and, if possible, decide which of the parties was at the date of the order in

such possession. With a view to expedite the proceedings, under the amended section, it is provided that the Magistrate shall call upon the parties

to put in written statements in respect of the fact of actual possession of the subject of dispute and in addition further require 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. Thus in addition to

requiring the parties to file written statements, under the new procedure, the parties are also required to put in documents and to adduce, by putting

in affidavits, the evidence of such person, which they rely upon. Instead of receiving all such evidence as may be produced by the parties, under the

new procedure, the Magistrate is required to peruse the statements, documents and affidavits put in by parties and conclude the enquiry. The

Magistrate is empowered, if he thinks fit, to summon and examine any person whose affidavit has been put in as to the facts contained therein.

Under this new Sub-section the enquiry is to be concluded on perusing the statements, documents and affidavits put in by the parties. Discretion is

given to examine any person who has put in an affidavit. Under the Sub-sections above enumerated in the new procedure the enquiry has to be

concluded without taking evidence except under the discretion of the Magistrate by examining persons who have put in affidavits. But the original

Sub-section (9) as it stood before the amendment is retained in full. Sub-section (9) reads as follows:

The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any

witness directing him to attend or to produce any document or thing.

Under this Sub-section, the Magistrate is empowered in his discretion at any stage of the proceedings on the application of the parties to summon a

witness to attend or to produce any document. The submission of Mr. R. Santanam, learned counsel for the petitioners, is that Sub-section (9) to

Section 145, Crl. P. C. should be read along with other Sub-sections to that section and that the discretion given to the Magistrate under Sub-

section (9) can only be exercised either for the purpose of examining a witness, who has filed an affidavit under the proviso to Sub-section (4) or

for examining a witness to show that no dispute as complained existed under Sub-section (5) to Section 145. To substantiate his contention the

learned counsel relied on various decisions.

In Bhagwat Singh and Others Vs. State and Another, it was held that the phrase ""hear the parties"" in Sub-section (4) could only mean that

arguments should be heard and would not include oral examination of the parties and their witnesses. It was further held that Sub-section (9) did

not confer any right upon a party to examine a person as its witness but it only laid down the procedure to be followed in procuring the attendance

of its witnesses. According to Dessai, J. in Bhagwat Singh and Others Vs. State and Another, , whether a party has a right to examine a witness or

not has to be ascertained from provisions other than Sub-section (9) and Sub-section (4) is the only provision to confer a right upon a party to

examine a witness orally in the Court, and sub-section (9) must be read with the first proviso to Sub-section (4). Thus, in the view of the learned

Judge the powers given to the Magistrate under Sub-section (9) can only be exercised by the Magistrate to summon and examine only persons

who have filed affidavits. I regret I am unable to follow this decision for Sub-section (9) is absolute in its terms, and does not provide that it is

subject to the conditions laid down in Sub-section (4). Under Sub-section (9) the Magistrate is empowered at any stage of the proceeding u/s 145

on the application of either party to summon any witness directing him to attend or to produce a document. The procedure under subsection (4) as

amended envisages the Magistrate coming to a conclusion on the documents and affidavits filed by the parties without the oral evidence. Sub-

section (4) does not relate to witnesses, whom the parties would like to summon through Court. There may be evidence, oral and documentary, in

the case, but it could not be made available except by summoning through the Court the witnesses concerned to give evidence or to produce the

documents. Sub-section (4) does not in any way state that this type of evidence cannot be produced at all in Section 145 proceedings. The first

proviso to Sub-section (4) cannot be read to restrict the powers of the magistrate to summoning the witnesses, who have filed affidavits. Sub-

section (4) deals only with statements, documents and affidavits put in by parties and not evidence of third parties, which can only be obtained by

issuing summons through Court. I am unable to share the view of Desai, J. in Bhagwat Singh and Others Vs. State and Another, that the power of

the Magistrate to summon witnesses is confined only to summoning persons, who have filed affidavits. This decision was approved and followed

by a Bench of the Punjab High Court in S. Jodh Singh and Others Vs. Mahant Bhagambar Dass and Others, . The Bench also dissented from the

view of the Rajasthan High Court in Bahori Vs. Ghure and Another, . The learned Judges refrained from expressing any opinion on the view of

Rajasthan High Court that the Magistrate has in any event powers u/s 540, Crl. P. C. to summon witnesses but held that the observations of the

Rajasthan High Court regarding, Sub-section (9) are obiter and that they were not able to agree with the opinion so expressed. The Bench also

observed that, if the contention that a party had a right to apply for summoning witnesses, whose affidavits had not been filed, was accepted, the

very object of Sub-sections (1) and (4) as amended would be nullified and that the procedure instead of being shortened would become doubly

cumbersome. The Bench further observed that the continued existence of Sub-section (9) in its present form was certainly not very apt and

required looking into by the legislature but that they had no doubt that the right to adduce oral evidence must be confined within the limits imposed

by the first proviso to Sub-section (4). I regret I am unable to follow this decision. After amendment of Section 145, Sub-section (9) as it stood

before is retained and it must be given its full meaning and cannot be disposed of as not being very apt.

In B. G. Rao v. State, 1962 1 Cri. L.J. 61 (Ori) Harasimham C. J. of the Orissa High Court followed the decisions in Bhagwat Singh and

Others Vs. State and Another, and S. Jodh Singh and Others Vs. Mahant Bhagambar Dass and Others, but dissented from Bahori Vs. Ghure and

Another,

In Bahori Vs. Ghure and Another, Sarjoo Prosad, C. J. expressed his view that the first proviso to subsection (4) 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;

but the proviso does not preclude the Magistrate from calling as a witness any other person that he thinks proper to examine. The learned judge

observed that it would indeed be surprising if the proviso to Sub-section (4) of Section 145, Crl. P. C. was capable of bearing the interpretation

which was sought to be placed upon it by the learned counsel that the Magistrate had no jurisdiction to examine a person, who had not filed an

affidavit as a Court witness. He also found that the powers of the Court u/s 540 were not impaired. I am in respectful agreement with the view of

the learned Judge in Bahori Vs. Ghure and Another, that the discretion of the Magistrate at any stage of the proceeding to issue summons to a

witness on the application of the parties to attend or to produce a document is not in any way restricted by the first proviso to Sub-section (4) of

Section 145. The view in Bahori Vs. Ghure and Another, was followed by Madhya Pradesh High Court in Kanhaiyalal and Others Vs. Devi

Singh, where it was observed that Sub-section (9) was wider than the first proviso to Sub-section (4) and that there was no such restraint on the

Magistrate or on the scope of the examination on oath, if at any stage of the proceeding on the application of either party the Magistrate at his

discretion issued summons to any witness directing him to attend or to produce any document or thing. The Court expressed its dissent with we

now taken in Bhagwat Singh and Others Vs. State and Another, .

In a recent decision of the Allahabad High Court in Mirza Mohd. Aziz Vs. Safdar Husain and Another, Mulla, J. following the decision In

Bahori Vs. Ghure and Another, held that there was no bar to a Magistrate examining a witness u/s 540 Crl. P. C. and that the proviso to Section

145(4) was confined in its operation to the witnesses who were named by the parties to the dispute. The decision in Bhagwat Singh and Others

Vs. State and Another, which hold a contrary view, is not referred to in Mirza Mohd. Aziz Vs. Safdar Husain and Another, .

The power conferred on the Court u/s 540 to summon any person as a witness at any stage of the enquiry is not in any way affected by any of

the provisions in Section 145, Crl. P. C. The powers under Sub-section (9) to summon a witness directing him to attend or produce a document at

any stage of the proceedings on the application of the parties are not in any way affected by the first proviso to Sub-section (4). The Magistrate

can summon any witness u/s 145 (9) to give evidence or to produce a document, even I though he may not have filed an affidavit u/s 145(1) of the

Crl. P. Code.

The order of the Magistrate issuing summons to the Karnam and the Sub-Inspector of Police is, therefore, correct and this petition is dismissed.