Lakshmidhar Patel and Others vs Tejraj Patel

Narasimham, C.J.—This is a revision petition by the second party against a final order u/s 147; Code of Criminal Procedure passed by a First Class Magistrate (Sadar), Sambalpur.

The main question of jurisdiction urged by Mr. P.V.B. Rao for the Petitioner is that the learned Magistrate followed the procedure prescribed in the amended Section 145, Code of Criminal Procedure and disposed of the case on the mere affidavits of the parties, instead of taking evidence. In my opinion, this contention must prevail. By the extensive amendments made to Code Criminal Procedure in 1955 Section 145 was radically recast and the Court was authorised to dispose of the proceeding under that section on affidavits only, reserving the right to take evidence only in special circumstances. But Section 147, Code of Criminal Procedure was not amended in the same manner; on the contrary the amendment made to Section 147(1) would seem to indicate that the old procedure of taking evidence should be adhered to in a proceeding under that section. In a recent decision of the Patna High Court reported in Manik Chand Vs. Bhubneshwar Prasad, also, this view has ''been accepted. I must therefore hold that the entire proceeding" is vitiated by the failure of the learned magistrate to follow the mandatory provisions of Section 147, Code of Criminal Procedure. The case must be reheard.

The final order passed by the Magistrate under Section, 147, Code of Criminal Procedure is therefore set aside and the case is sent back to the learned Magistrate or his successor in office for disposal according to law, if there is still apprehension of breach of peace.