SHAMBHU NATH CHOPRA Vs. STATE

JUDGEMENT

(1.) An interesting question of procedure, viz., whether affidavits in proceedings under Section 145 of Criminal Procedure Code should be attested by the very Magistrate trying those proceedings or by some other Magistrate, arises for consideration in this reference, which has been made by the learned Additional Sessions Judge in the following circumstances:- The admitted facts are that the affidavits filed by the first party in the proceedings before the First Class Magistrate (Mr. B.N.Chaturvedi) were attested by Magistrate, First Class, Delhi other than Shri B. N. Chaturvedi, who was trying the proceedings under Section 145 of the Criminal Procedure Code. He, therefore, left them out of consideration to reach the conclusion that he did regarding the possession of the disputed properties. The learned Additional Sessions Judge has persuaded himself to refer the matter to this Court because, in his view the affidavits filed by the first party were in compliance with law and had to be taken into consideration.

(2.) In the first place, it is necessary to notice that it was only by way of an amendment to Section 145 of Criminal Procedure Code, that the Magistrate was permitted to consider evidence in the shape of affidavits. The former sub-section (4) of Section 145 of Criminal Procedure Code did not enable him receive evidence by way of affidavits, but he was so permitted by amending Act XXVI of 1955 which substituted sub-section (4) of Section 145, Criminal Procedure Cede, which reads as follows :-

(3.) Section 145 of Criminal Procedure Code does not indicate the manner in which the affidavits have to be sworn. Section 4 of the Indian Oaths of 1873, reads as under :-