Pritam Singh vs Ranjit Singh

Kan Singh, J.—These are two revision applications directed against the orders passed by the learned Sub Divisional Magistrate, Karanpur on 12-5-69 in proceedings u/s 145 Criminal Procedure Code. The two revision applications present similar features and can conveniently be disposed of together. I may narrate the facts with reference to S. B. Cr. Revision No. 88 of 1970.

Pritamsingh, party No. 1, in the proceedings before the learned Sub Divisional Magistrate made an application u/s 145 Criminal Procedure Code to the learned Sub Divisional Magistrate on 17-9-68 in respect of squares No. 33 and 35 of Chak No. 1 N, and alleged that the petitioner was in peaceful possession of these squares, but party No. 2, Ranjitsingh had unlawfully taken possession of the land and destroyed the crop raised by party No. 1. This land was entered in the name of Ram Singh�s son Harbans Singh, Harbans Singh was alleged to have sold this land to party No. 2 Ranjitsingh, but inspite of the sale Pritamsingh, Party No. 1 continued to be in possession thereof. Pritamsingh was the brother of Harbansingh�s wife Jasbinder Kaur. Smt. Jasbinder Kaur, after the death of her husband started living with her brother Pritamsingh, Party No. 1. Harbans Singh had three children two daughters and one posthumous son born two months after Harbansingh�s death. On the day the application was made the learned Sub Divisional Magistrate passed a preliminary order and attached the land. Pritamsingh filed his statement claiming possession of the land in dispute. Both the parties filed a number of affidavits. Ranjitsingh flied 20 affidavits and Pritam Singh filed 34 affidavits. Pritamsingh also filed (1) the sale deed in his favour executed by late Harbanssingh; (2) Girdawart of Kharif 1963; (3) demand slip for 4 Kilas in the name of Ranjit Singh and for the remaining Kilas of the square in the name of Pritamsingh. He also examined D.W. 1 Sohanlal and D.W. 2 Anandsingh, the Station House Officer. On 12-5-69, the learned Sub Divisional Magistrate declared Ranjitsingh to be in possession of the land.

The second revision application No. 69 of 1970 arises out of 145 Criminal Procedure Code proceedings launched before the learned magistrate by Pritam singh in respect of squares Nos. 33 and 35. In that case Ranjitsingh denied that the land was in possession of Pritamsingh and both the parties filed their respective affidavits and documents.

In the result, the learned Sub Divisional Magistrate declared these squares to be in pessession of Ranjitsingh. Pritam Singh first went up in revision before the learned Sessions Judge of Ganganagar who transferred the revision application to the Additional Sessions Judge who declined to make a reference. It is in these circumstances that Pritamsingh has come up in revision to this Court.

In assailing the orders of the learned Divisional Magistrate learned counsel for the petitioner Pritam Singh submitted: (1) that the affidavits filed by Pritamsingh in support of his claim for possession in the two proceedings were net properly sworn by the various deponents and consequently the learned Sub Divisional Magistrate was in error in acting on these affidavits. The verification of the affidavits is broadly speaking of two kinds, In about 16 affidavits depenents have stated like this:

EkS gYQu c;ku djrk gwW fd mijksDr gYQ&ukek dh en ua0 1 rk% 5 esjs tkfr bYe ;dhu ls lgh o nq:Lr gS A fygktk gYQ&ukek is''k gS A

In the remaining affidavits the verification stands as follows:

EkS gYQu c;ku djrk gwW fd mijksDr gYQ&ukek dh en ua0 1 rk% 6 lp o fcYdqy lgh fy[kok;k gS A dksbZ vej Qkyrw o xyr ugh fy[kok;k gS o dksbZ vej fNik;k ugh gS Afygktk ;g gYQ&ukek is''k gS %

It was next submitted that the copies of the documents produced on behalf of Ranjitsingh were not duly certified copies, but the Larned Sub Divisional Magistrate had himself endorsed the copies as certified It is not clear whether the copies were from the original record or from other certified copies. Then it. was submitted by learned counsel that the Station House Officer, Anarsar had proved the admission of Ranjitsingh and Jaspalsingh son of Ranjitsingh in certain statements recorded by him. These statementss appear to have been recorded in connection with Section 107 Cr. P.C proceedings. It was pointed out that the learned Sub Divisional Magistrate in error in thinking that Sections 161 or 162 Criminal Procedure Code were attracted and the statements could have been made use of as previous statements in which a person had made an admission. In other words, according to the learned counsel the statements could be used for proving the admission of the opposite party.

I have heard learned counsel for the parties. Now, the object of proceedings u/s 145 Criminal Procedure Code is to prevent a breach of peace, if in a dispute relating to land there is likelihood of such breach of peace. It is true, the learned Magistrate has to take effective steps to prevent a breach of peace and for that he is to determine the question regarding the actual possession of the land on the date of the preliminary inquiry or within next two months preceding it, by a summary inquiry. The amendment made in Section 145 Criminal Procedure Code in the year 1956 by enabling the Magistrates to decide the question of possesion by affidavits instead of recording evidence of witnesses in every case was with a view to resolving such disputes as speedly as possible and then leaving the parties concerned 10 have their rights determined from competent court, if necessary In such proceedings the affidavits form the bulk of the evidence and, therefore, such affidavits have to be sworn properly before a competent authority. Form of an affidavit has not been prescribed by Section 145 Criminal Procedure Code, but the term ''affidavit'' though not defined in any statute has acquired a set form and meaning. Order 19 Rule 3 CPC provides what an affidavit shall contain. It lays down that the affidavit shall be confined to such facts as the deponent is able, of his own knowledge, to prove except, on interlocutory applications on which statements of his belief may be admitted, provided the grounds thereof are stated. It is, therefore, necessary for a proper affidavit that it should be properly verified and must be restricted to matters of fact within the personal knowledge of the deponent. Then regarding facts which are not within the personal knowledge of the deponent, but they are statements regarding facts based on his belief then the grounds for the belief have also to be disclosed. An affidavit in the form that several paragraphs of the affidavit are true to the knowledge and belief is not a proper affidavit, Since the decision of the learned Magistrate, by and large, depended on the evidence before htm in the shape of affidavits, such affidavits it they do not conform to the essentials, of an affidavit as contained in Order 19 Rule 3 CPC would not be usable in evidence.

In Bhair Gir. v. Hanuman Prasad 1968 RLW 361 Mehta, J. has held that where an affidavit is not properly filed or verified the court cannot act on it. I find myself in agreement with learned brother in this connection. The affidavits produced by Ranjitsingh could not, therefore, have been acted upon by the learned Sub Divisional Magistrate.

The next question is as to what is to be done in such a case. It does not appear that any objection was taken by the petitioner regarding this defect in the affidavits. It is true, the defect was there, but if it were pointed out the learned Magistrate could have called upon the party to rectify this defect by filing fresh affidavits according to law. In the aforesaid case Mehta, J. has further observed that the lacuna in the affidavit cannot be allowed to be removed. With all due deference to the learned Judge I find myself unable share his view. The learned Judge had no occasion to consider the question as to what would happen if no objection is raised by the party concerned in the first court about the verification of the affidavit. No direct authority has been placed before me. Learned counsel for the opposite party has, however, invited my attention to some cases which afford some guidance in the matter.

In Hemdan v. State of Rajasthan 1965 RLW 225 Bhargava J. came across certain affidavits in the case before him which were not found to be verified by a competent Magistrate. The affidavits which were not verified before a cometent magistrate or authority were as good as no affidavits. In such a case Bhargava J. remanded the case to the trial court to afford an opportunity to the party concerned to have the affidavits properly verified. In that case it also appeared that in the first court no objection was raised regarding the authority by which the affidavit was verified. Learned Judge emphasised that it was the duty of the Sub Divisional Magistrate before whom the proceedings were pending to decide the dispute and to receive evidence in the prceedings

It thus appears that while Mehta J. has emphasised the speedy disposal of the proceedings he did not think that the lacuna regarding the affidavis be allowed to be made good; Bhargava J. on the other hand, has exphasised the duty of the learned magistrate to resolves the dispute between the parties and for that to receive evidence.

Learned counsel for the opposite party also placed before me Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Others, , Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, and Som Dass v. State of Punjab AIR 1967 Punj 169, but in my view they are not applicable to a situation like the present one.

The course adopted by Bhargava J. in remanding the case to the first court for affording an opportunity to the party to make good the defect in the form of an affidavit commends itself to me.

The primary object of Section 145 Criminal Procedute Code is to prevent breaches of peace concerning and that object is sought to be achieved by instituting an inquiry regarding the fact of actual possession and then disposing of the matter by a by a summary inquiry. Summary or speedy inquiry is after all aimed at prevention of the breach of peace and therefore, in a case where no objection police officer is raised regarding the form of affidavits, when it should have been raised by a party, the case should not be thrown away merely because there is a formal defect in the verification of the affidavits, but such a defect be allowed to be made good.

Then I may come to the next point urged by learned counsel. The documents that were produced by Ranjitsingh were copies of certain entries in public record. It does not appear that the certified copies of the public record were produced before the learned magistrate. According to the provisions of Section 59 of the Evidence Act facts except the contents of documents may be proved by oral evidence. The contents of documents may be proved either by primary or by secondary evidence (vide Section 61 of the Evidence Act ) Primary evidence means a document itself, by producing it for the inspection of the court. In the case of public documents as mentioned in Section 74 of the Evidence Act the document can be proved only by producing a certified copy thereof A copy which is not certified as required by Section 76 of the Evidence Act will be inadmissible in evidence. In these circumstances the learned Sub Divisional Magistrate could not have accepted the copies which were not certified copies. Here also no objection seems to have been taken in the first court when the documents were produced. The opposite party should, therefore, be afforded an opportunity to produce the certified copies.

I may next deal with the contention about the use of the state ments of Ranjitsingh and Jaspalsingh which were said to have been recorded by the Station House Officer. Anarsar. Now these statements are said to have been recorded by the Station House Officer in connection with 107 Cr. P.C. are not in relation to commission of an offence. A police officer, making an inquiry for his own satisfaction and for collecting evidence to be placed before the learned magistrate for action u/s 107 Cr P.C, is not collecting evidence regarding the commission of an offence and, therefore the learned magistrate for action u/s 107 Cr. PC. is not collecting evidence regarding the commission of an offence and, therefore, the provisions of Section 161 or 162 Criminal Procedure Code are not attracted in such cases. The statements recorded by a police officer in such a case are like any other previous statements of a person and if they contain any admission of such person. I do not think, there is any bar to the use of such statements for proving the admission of the person concerned. This is, however, not to say as to what should be the value of such an admission made defore a police officer. It will be for the court concerned to evaluate such an admission in the light of the facts and circumstance of the case, but it was not right on the part of the learned magistrate to say that such a statement was not legally admissible evidence or that it could be used only for the purposes of corroborating or contradicting the maker of such statements. Admissions of a party are substantive evidence according to the Evidence Act, though their value will depend on the facts and circumstances of the case, as already observed.

Lastly, I may deal with the submission made by learned counsel for the opposite party that the report of the Station House Officer regarding the existence of the dispute was not admissible in evidence. Learned counsel for the petitioner has not argued to the contrary. His submission however was that the Station House Officer was examined only to prove the earlier Station House Officer was examined only to prove the earlier Ranjitsingh and Jaspalsing. About them I have already made my observations. The magistrate should bear in mind that the repot of a police officer not based on his personal knowledge cannot be read as evidence in the case.

Whatever I have observed above mutatis mutandis applies to the other proceedings related to squares Nos. 35 & 36.

In the result I allow both the revision applications and set aside the orders of the learned Sub Divisional Magistrate, Karanpur in the two Proceedings and remand both the cases to him for proceeding further in the matter according to law and in the light of the observations made above. The learned Magistrate will have the same interim arrangements regarding the land as were earlier made by him. The lands will continue to remain for the attachment till the disposal of the two proceedings. Learded counsel for the petitioner submitted that the opposite party had taken away Rs. 10,00/- after the order was passed by the learned Magistrate and before the stay order was granted by this court. He may move the the learned Magistrate for appropriate relief.