Mt. Sarfi vs Mt. Sugo and Others

Raj Kishore Prasad, J.—This is a reference, u/s 438, Criminal Procedure Code, hereinafter referred to as ''the Code'' made by the learned 2nd Additional Sessions Judge of Santal Paraganns, Dumka, recommending that the order of the 28th March 1981, of Mr. K.P. Sinha, Magistrate First Class, Godda, passed u/s 145 of the Code, declaring the possession of the first party, who are the opposite party here, should be set aside.

The learned Judge, in his letter of reference, has discussed the facts and the law with great clarity and fully in order to show that the impugned order does not conform to the provisions of Sub-section (4) of Section 145 Of the Code, in that, the affidavits had not been considered by the learned magistrate as required by Sub-section (4) of Section 145 of the Code. The learned Judge, in support of this reference, has referred to and relied upon two decisions of Sahai, J., in Shah Jamilur Rahman and Others Vs. Abdul Aziz and Others, and Rudra Singh and Another Vs. Bimla Debi and Others, in which it has been held that the magistrate should consider the affidavits of each deponent, and, his order without consideration of such affidavits cannot be upheld.

Recently, I had also an occasion to consider this question and to interpret Sub-section (4) of Section 145 of the Code in Sohan Mushar and Others Vs. Kailash Singh and Others, and, I held there that the word "peruse", used in Sub-section (4) of Section 145, means "to go through critically'''' that is, "to read attentively and examine critically in detail one by one".

The test to find out if the magistrate has considered the affidavits, filed by the parties, is to see if he has applied his mind to them and examined critically in detail, one by one, each of the affidavits filed by the parties and given reasons for accepting or not accepting them. It should appear from the order of the magistrate that he has in fact given consideration to the affidavit of each deponent and had given reasons for accepting or rejecting the same. He must mention who the several deponents are whose affidavits have been filed and why She statements contained in the affidavits of a particular deponent should not be accepted. Each affidavit has to be considered just like oral evidence of a witness. It is to be remembered that under the amended Section 145 of the Code these affidavits have taken the place of oral evidence and now the parties have no right to examine a witness unless his affidavit is on the record. The Court has, therefore, been given the discretion under the First proviso of Sub-section (4) of Section 145 to examine any witness, if he likes, whose affidavit has been filed, in order to test the statements contained therein. If the affidavits of each party are considered in a bunch, in one lump, without giving reasons for doing so, is, no consideration of the affidavits. If, however, there exists one ground for accepting or rejecting an affidavit, and that ground equally holds good in case of other affidavits also, then certainly in such a case the magistrate can give that one ground for accepting or rejecting the affidavits of more than one person, and, he can take them all in one lump and consider them together. The affidavits are not simply to be mentioned for the sake of formality and mechanically dealt with. The magistrate must apply his mind to each affidavit and go through it one by one and on the facts and circumstances of the casa and on the documentary evidence on the record, see if it can be accepted or rejected. He must peruse each affidavit and then consider and weigh it. It is his bounden duty to do so. It should be remembered that the success of a party does not depend on the number of the affidavits filed but on the quality and reliability of the deponent swearing such affidavits. For instance, if a deponent, whose affidavit is on the record, is a boundary witness, his affidavit prima facie is reliable and should be accepted unless good reasons are assigned for rejecting it. In this way, each affidavit, like oral evidence of each witness, should be considered, weighed and accepted or rejected. It is true that for lack of cross examination of the deponents, who have sworn the affidavits, the magistrate cannot be expected to give defiled reasons for accepting or rejecting the affidavits, but he should make it apparent in his order that he has applied his mind to them.

In the light of the above test, let us now see if the order of the learned magistrate suffers from the infirmities pointed out by the learned Judge.

On going through the order of the learned magistrate it is impossible to know as to how many affidavits were filed by each side; who the deponent was whose affidavit was filed; who belonged to which village; how he has connected with the, disputed land; what made him a competent witness, and so on and so forth. The learned magistrate has not at all examined each of the affidavits filed in the case and has not given reasons for not accepting or accepting the same. hE has referred to the affidavits, without indicating their nature, their number, and their reliability, in one lump, and, simply said that the first party, who are the opposite party here, filed a number of rent receipts, parchas and chaukidari receipts, right from the beginning, whereas, the second party filed a rent receipt only for one year, i. e., 1957 to 1958, and, therefore, he rejected the affidavits filed by the second party and accepted those of the first party. The learned Judge has taken pains to point out several mistakes of fact in the order of the magistrate. For instance, he has said that the observation of the learned Magistrate that the witnesses of the first party belonged to the same village is not correct.

For these reasons, and for those given by the learned Judge I hold that the order complained of passed by the learned Magistrate u/s 145 of the Code, on 28th March, 1961, is not in accordance with law, as required by Section 145 (4) of the Code, and, therefore, it cannot be upheld.

I would, therefore, accept the reference and set aside the impugned order of the learned Magistrate of the 28th March, 1961.