Kanthi Ram Das vs Uttam Sarma and Another

Baharul Islam, J.—This reference has been made by the Sessions Judge. Gauhati, and arises out of a proceeding u/s 145. Criminal Procedure Code. The reference has been made on the ground that the learned Magistrate failed to consider the affidavits and documents filed by the parties.

Shri B.K. Goswami learned Counsel supporting the reference, leads me through the order passed toy the Magistrate. The learned Magistrate in his order itself has stated that the first party has filed five affidavits and the second party filed three in support of their respective claims, but in the order the learned Magistrate has stated that the first party has "failed to adduce evidence to show that he was actually possessing the disputed land ..." The learned Magistrate was presumably under the mistaken belief that evidence did not mean evidence by affidavit. Affidavits filed by the parties u/s 145, Criminal Procedure Code constitute evidence within the definition of the term in the Evidence Act. Therefore, under Sub-section (4) of Section 145 of the Code of Criminal Procedure it is the duty of the Magistrate to consider the affidavits and other documents filed by the parties, and then come to the finding as to which of the parties, if any, is in possession of the disputed land. In this case he has not done so and therefore his order is not sustainable.

In the result the order of the Magistrate is quashed and the reference is accepted. The learned Magistrate is directed to dispose of the matter in accordance with law.