H. Khaliq Dar vs State and Another

Fazl Ali C. J.

This reference raises a substantial question of law regarding the interpretation of Sub-section (9) read with Sub-section (4) of Section 145 of the

Criminal P. C.--a point on which there appears to be a serious divergence of judicial opinion in India. The reference arises out of proceedings

drawn u/s 145 with respect to the land in dispute between the parties. It appears that while the proceedings were going on in the Court of the trial

Magistrate, the applicant moved an application before the Magistrate for summoning two witnesses namely the Dy. Registrar High Court who was

at the time of the dispute the Munsiff Sub-Registrar Srinagar and the Tehsildar of the Nazool Department both of whom had refused to appear in

the Court without getting a regular summons from the Court. The learned trial Magistrate rejected the prayer of the applicant on the ground that the

applicant had taken a long time to complete the proceedings and had taken several adjournments for arguments. In other words the learned

Magistrate rejected the application without considering the same on its merits. Thereafter an application in revision was made to the Sessions Judge

Srinagar for making a reference to this Court. This application was resisted by the non-applicants on the ground that the Magistrate had no

jurisdiction to summon the witnesses prayed for by the applicant u/s 145(9) and even if these witnesses could have been summoned their evidence

could not be considered by the Court u/s 145(4) of the Criminal P. C. It was further contended before the Sessions Judge as also before us that as

the witnesses sought to be summoned had not given any affidavits, they were debarred from giving evidence in the proceedings. Reliance was

placed by the petitioners on a decision reported in Bhagwat Singh and Others Vs. State and Another, and S. Jodh Singh and Others Vs. Mahant

Bhagambar Dass and Others, . It appears however, that the Patna, Rajasthan, Madras and M. P. High Courts have taken a contrary view. Before,

considering the authorities on the subject, we would like to analyze the relevant provisions of the Criminal P. C. in order to find out the real

purpose, scope and ambit of Sub-sections (4) and (9) of Section 145 of the Criminal P, C. Section 145(4) and first proviso runs thus:

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.

It is true that in the main body of Section 145(4) the Court has been given the power to consider and peruse the statements, documents and

affidavits and there is no specific reference to the evidence of the witnesses. Nevertheless the proviso quoted above gives a clear discretion to the

Magistrate to summon and examine any person whose affidavit has been put in as to the facts contained therein. Thus by virtue of the first proviso

(Supra) the evidence of a deponent can also be considered by the Magistrate in proceedings u/s 145 even though this power is not expressly given

to the Magistrate u/s 145(4) of the Cri. P. C. It is therefore, obvious that even though Section 145(4) relates merely to perusal of statements,

documents and affidavits, yet by virtue of the proviso an implied power is contained in Sub-section (4) to consider the evidence of the deponent if

examined and recorded--otherwise the first proviso would become absolutely redundant and useless and the very object of engrafting this proviso

would be frustrated. Similarly Section 145(9) runs as under:

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.

This proviso also invests the Magistrate with a discretion at any stage of the proceedings, to issue a summons to any witness directing him to attend

or to produce any document or thing. Such a discretion has to be exercised only on the application of either party and if the Magistrate is satisfied

that a fit case for summoning a witness is made out. On a.parity of reasoning given above, Sub-section ' (4) would impliedly give power to the

Magistrate to consider the evidence of a witness summoned by the Magistrate tinder Sub-section (9) of the Cri. P. C. otherwise this provision

would become useless and redundant. This mere fact that there is no reference to the evidence to be summoned either in, the first proviso or Sub-

section (9) of Section 145 does not necessarily lead to the inference that the evidence referred to in these provisions has to be excluded from

consideration.

It is well settled that the Courts must adopt a harmonious rule of interpretation so as to bring about reconciliation between apparent inconsistencies

appearing in the provisions of the same statute. It is also equally well settled that whenever the legislature makes a particular provision it must be

presumed that there is a certain object behind doing so and the legislature never intends to make provisions which are useless and redundant.

Having regard to these golden principles of interpretation it seems to us that the first proviso to Section 145(4) and Sub-section (9) refer to two

different categories of cases for which provision has been made by the legislature. The first proviso covers the case only of such witnesses who

have filed affidavits before the Court. In other words the deponents of the affidavits have been put within the framework of the proviso and the

Magistrate has been given a discretion to summon them if he thinks fit in order to explain the affidavits given by them. There may, however, be

some witnesses whose evidence may be very material but who have not given affidavit? for one reason or the other. It is to meet this contingency

that Sub-section (9) has been engrafted which gives discretion to the Magistrate to summon any witness on the application of either party at any

stage of the proceedings. In other words while the first proviso is confined to the deponents, Sub-section (9) is more or less general in character

and gives the right to any of the parties to request the Court to summon a witness who cannot be Produced by the party at its own instance, e.g.,

an official witness who can appear only through a summons. In order to ensure the attendance of such a witness the assistance of the Court has to

be taken and that is what Sub-section (9) provides for. Reference has also been made to another provision in the Criminal P. C. namely Section

540 which runs thus:

Any Cout may, at any stage of any inquiry, trial or other proceeding under this code, summon any person as a witness, or examine any person in

attendance though not summoned as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or

recall and examine any such person if his evidence appears to it essential to the just decision of the case.

It is not disputed by the counsel appearing for either of the parties nor in any of the authorities cited before us that if the Court summons a witness

under this section his evidence would be considered by the Court, although there is no specific power contained in Section 145(4) for considering

the evidence of this type, this also supports our view that the power contained in Sub-section (4) cannot be strictly limited to the language used

therein but has to be construed in a broad and general sense. In other words, where the Criminal P. C. provides for examination of any witness

under given circumstances, then there is an implied power to consider the evidence of that witness. Section 540 applies to cases where a witness is

examined by the Court and the witness so examined is usually known as the Court witness. The requirement of law in cases contemplated by

Section 540 is that the Court must consider the evidence of the witnesses concerned to be essential for a just decision of the case. Thus it would

appear that the first proviso to Sub-section (4), Sub-section (9) of Section 145 and Section 540 contemplate three separate categories of cases

which are mutually exclusive. The first proviso to Section 145 refers to cases of deponents whose affidavits have been filed. Sub-section (9) refers

to the power of the Magistrate which is to be exercised on the application of any of the parties and Section 540 confers power on the Magistrate

to examine a witness at his own in order to understand the facts of the case. Since the Criminal P. C. has made these three separate provisions, it

can safely be presumed that where the witnesses have to be summoned under these provisions, there is an implied power also to consider their

evidence. If this harmonious interpretation be put to the provisions (Supra), we feel no difficulty in taking the view that the Magistrate can consider

the evidence of any witness whom he summons on the application of the parties u/s 145(9).

We shall now deal with the authorities. In S. Jodh Singh and Others Vs. Mahant Bhagambar Dass and Others, a Division Bench no doubt held

that in view of the amended provisions of Section 145(4) no evidence taken by the Magistrate u/s 145(9) could be considered. Their Lordships

observed as follows:

The object of the changes made by the amending Act obviously appears to be to shorten the proceedings u/s 145 by providing that the evidence to

be adduced by the parties may be given by affidavits and that the delay in getting the witnesses summoned and examined orally may be eliminated.

For the purpose of elucidating the facts stated in the affidavits put in, power is reserved to the Court to examine such of the persons orally as he

may deem necessary, out of the persons whose affidavits have been put in Sub-section (9) which was not touched by the amended Act runs as

under:

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.

In the context of the provisions of Sub-sections (1) and (4) as they existed prior to the amendment, Sub-section (9) provided a procedure by

which, at the instance of either of the parties, the Magistrate could issue a summons for the attendance of the witness 'to attend or to produce any

document or thing'. In view of the amendment made in Sub-sections (1) and (4). however, the question of the examination of witnesses at the

instance of the parties, does not arise, because it has been directed that evidence by the parties shall be adduced by means of affidavits.

Their Lordships appear to have been led away by the fact that as, by virtue of the amendment, the language of Sub-section (4) is changed so as to

simplify the procedure u/s 145 and Sub-section (9) has remained untouched, therefore, there is an apparent inconsistency between Sub-section (9)

and Sub-section (4) of Section 145. Their Lordships opined that as there is no provision for consideration* of the evidence summoned u/s 145,

the same cannot be considered. With very great respect we would observe that their Lordships have put a very narrow interpretation on the

provisions of the two sub-sections. Their Lordships have not considered the various aspects to which we have adverted above. Secondly their

Lordships do not appear to have considered the intention of the legislature in leaving the provisions of Sub-section (9) which stood before the

amendment untouched after the amendment. It is well settled that the legislature must be presumed to know the provisions of a particular Act which

it is amending and if it has deliberately left a particular provision untouched or unamended, then there is a particular object behind this. In the

present case there can be no doubt that the legislature clearly intended to provide for a contingency where a witness could be summoned by the

Court if his evidence was material and if it was not possible for him to give an affidavit. The fact that Sub-section (9) was deliberately left

untouched clearly shows that Sub-section (4): must implicitly contain the power to consider such evidence. For these reasons we express our

respectful dissent from the judgment of the Punjab High Court. S. Jodh Singh and Others Vs. Mahant Bhagambar Dass and Others, .

A view almost similar to that of the Punjab High Court has been taken by a single judge of the Allhabad High Court in Bhagwat Singh and

Others Vs. State and Another, . In that case, however, the learned Judge held that Sub-section (9) did not confer any right upon a party to

examine a witness and that this sub-section was confined only to the examination of evidence which was permitted by Sub-section (4) and laid

down the procedure for examining such a witness. With very great respect we find ourselves unable to agree with this interpretation of law which

introduces an element of inconsistency in proviso to Sub-section (4) and Sub-section (9) but also imports a limitation into Sub-section (9) of

Section 145 which is not there.

There is another case which practically follows the Allahabad view. In Keshab Acharya Vs. Somehath Behera and Another, it was held that the

first proviso to Section 145(4) entitles only those witnesses to be summoned who have given their affidavits. It, however, appears that the attention

of the learned C J. was not drawn to Section 145(9) nor was this point raised and argued before him. For these reasons this decision does not

appear to be of any assistance to us in deciding the point.

A similar view was taken in Raghunath Behera and Others Vs. Purna Chandra Mahanta and Others, where also the ambit and the purport of

Section 145(9) was not considered.

On the other hand the view taken by us in this case is amply supported by a Division Bench decision of the Patna High Court in Sheo Kumar

Dubey Vs. Tribhuwan Rai Mukhtear and Another, . In that case their Lordships while dissenting from the Punjab Judgment (Supra) observed as

follows:

With the greatest respect, I am unable to agree. There is nothing in the language of the proviso to Sub-section (4) or in that of Sub-section (9) to

indicate that the former confers a right upon a party to examine a witness orally. It will be noticed that the expression ""if he thinks fit' occurs in both

the sub-sections and this expression shows that the discretion lies with the Magistrate. Further, the proviso to Sub-section (4) does not speak of

the application of a party, which fact indicates that the Magistrate may examine a person who has sworn an affidavit either of his own motion or at

the request of a party, whereas Sub-section (9) enables the Magistrate to summon a witness at the request of a party at any stage of the

proceedings. It will be noticed that the proviso to Sub-section (4) contains the provision to summon and examine any person and therefore, a

separate provision like the one in Sub-section (9) is not required for exercising the power given by the proviso. The view taken in the aforesaid

decision can be justified only if Sub-section (9) is completely ignored. This sub-section was in its present form before the legislature when extensive

amendments were made in 1955 in Sections 145 and 146.

The retention of Sub-section (9) in its old form cannot therefore, be due to mere oversight. It is true that the amendments aimed at expeditious

disposal of a proceeding u/s 145 nevertheless Sub-section (9) was retained. The newly added proviso to Sub-section (4) certainly empowers the

magistrate to summon and examine any person whose affidavit has been put in; but at the same time the legislature also empowered the Magistrate,

under Sub-section (9) to summon any witness at any stage of the proceeding on the application of either party. Neither in Sub-section (9) nor in

the proviso to Sub-section (4) a party has been given any right to examine a witness; in either case the discretion lies with the Magistrate and he

can summon a person under either of these provisions only if he thinks fit to do so.

In my opinion the legislature deliberately allowed Sub-section (9) to continue for meeting certain contingencies. It may not be possible for a party

to obtain the affidavits of some persons either because they do not want to be identified with a party to the dispute or because they are public

servants, at the same time such persons may be very competent to speak about possession. What remedy has a party in such a contingency? A

party may of course, request the Magistrate to ask such a person to swear an affidavit, but the Magistrate has no power to compel such a person

to do so. The only other alternative, therefore, for the party is to request the Magistrate to summon such a person and examine him as a witness;

and this can be done only under Sub-section (9). Of course the Magistrate is not bound to comply with the request of the party, but he has to

exercise his discretion judiciously, not arbitrarily.

The same view appears to have been taken by the Madras High Court in Challamuthu Padayachi and Others Vs. Rajavel, , M. P. High Court in

Kanhaiyalal and Others Vs. Devi Singh, , Mysore High Court in AIR 1968 Mys 16 and the Rajasthan High Court in Bahori Vs. Ghure and

Another, .

On a consideration, therefore, of the authorities mentioned above we prefer to follow the Patna view which has been followed by the Madras,

Mysore, M. P. and Rajasthan High Courts and which in our opinion is fully in consonance with the language employed in Sub-sections (4) and (9)

of Section 145. We, therefore, hold that Sub-section (4) does not bar either the summoning or the consideration of the witnesses summoned under

Sub-section (9) of Section 145 or u/s 540 of the Cri.P.C.