Sharda Prasad Singh and Another vs Satya Narain Singh and Others

Kamla Sahai, J.—The Additional Sessions Judge of Darbhanga has made this reference against an order passed by Mr. H, A. B, Farooqui, Magistrate, 1st Class, Samastipur, in a proceeding u/s 147 of the Code of Criminal Procedure.

It appears that the first party, who were the petitioners before the Sessions Judge, examined two witnesses in the proceeding. Thereafter, the learned Magistrate recorded an order on the 22nd November, 1958, that the procedure applicable to a proceeding u/s 145 as amended was applicable to a proceeding u/s 147 also, and that the parties should, therefore, file affidavits. The parties filed affidavits, and the learned Magistrate''s decision is based upon the evidence of two witnesses and the affidavits. The Additional Sessions Judge has stated in his letter of reference that the procedure was wrong, in view of my decision in Manik Chand Vs. Bhubneshwar Prasad, .

I have held in that case that the Magistrate must, in a proceeding u/s 147, receive all such evidence as may be produced by the parties, and that the procedure applicable to a proceeding u/s 145, whereby parties are to be asked to produce affidavits of witnesses, is not applicable to a proceeding u/s 147. That being so, it is clear that the learned Magistrate has, in this case, shut out evidence which the parties were entitled to produce. His judgment must, therefore, be set aside.

Accordingly, I accept the reference, and set aside the learned Magistrate''s order. The present proceeding u/s 147 is also quashed. If the learned Magistrate finds at any time that there is a dispute likely to cause a breach of the peace and that it is necessary for him to start a proceeding u/s 147 of the Code of Criminal Procedure, he may start such a proceeding afresh. It need hardly be said that that proceeding will be disposed of in accordance with the procedure laid down in Section 147.