RAM GOPAL Vs. STATE

JUDGEMENT

(1.) UPON a report dated 17.6.1966 by the police made to the Sub -Divisional Magistrate, Delhi, to the effect that there was a dispute between the petitioner and the respondent herein with regard to the possession of a latrine which was likely to cause a breach of peace, the learned Magistrate passed an order under Section 145(1), Criminal Procedure Code, directing the parties to the dispute to put in written statements of their respective claims and also to put in any such documents and affidavits upon which they wished to rely in respect of their respective claims. By the same order, the learned Magistrate also attached the subject -matter of the dispute. In pursuance of this order of the learned Magistrate, the parties to the dispute filed their written statements and also filed affidavits and other documents in support of their respective claims. On a consideration of the material on record, the learned Magistrate held that the respondent herein was in possession of the latrine and passed an order under Section 145(6), Criminal Procedure Code declaring the respondent herein to be entitled to possession of the latrine until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. Against this order of the learned Magistrate, the petitioner preferred a revision petition before the Additional Sessions Judge, Delhi. One of the contentions raised by him before the learned Additional Sessions Judge was that the learned Magistrate had acted upon documents which were not admissible in evidence. The learned Additional Sessions Judge accepted this contention and has submitted a report to this Court with a recommendation that the order of the learned Magistrate be quashed and that the case be remanded to him for fresh adjudication after allowing both the parties to adduce proper and legal evidence by way of original documents or certified copies of the judicial proceedings and orders etc. In support of their respective contentions.

(2.) APART from the written statements filed by the parties, the evidence adduced by them before learned Magistrate consisted of affidavits and other documents. So far as the affidavits are concerned, the learned Additional Sessions Judge has mistakenly assumed that these affidavits were attested by the Oath Commissioner appointed by the High Court under Section 139, C.P.C. whereas, as a matter of fact, these affidavits were attested by a Magistrate. Therefore, so far as the affidavits are concerned they do not suffer from any infirmity and they have been properly admitted and acted upon by the learned Magistrate. So far as the other documents are concerned, it would appear that some of them purported to be copies which were attested by the Oath Commissioner. It is contended by the learned counsel for the petitioner that such documents were inadmissible in evidence even in proceedings under Section 145, Criminal Procedure Code In support of his contention, he has relied upon a judgement of a Single Judge of the Madhya Pradesh High Court in State of M.P. v. Swami Prasad, ILR 1963 Madh Pra 360 and in particular, on the following observations of the learned Judge : -

(3.) IT is, of course open to the Magistrate before whom the documents are put in by the parties to require the parties to adduce oral evidence in support of the documents, if he feels that he cannot act upon the documents as such. Sub -Section (9) of Section 145, Criminal Procedure Code enables him to do so. The Magistrate may also require any party to file the original of the document in cases where only a certified copy thereof has been filed by any of the parties. In the absence of the original documents it is open to the Magistrate not to attach any weight to the copy. But it cannot be said that copies of documents cannot be either admitted or acted upon by the Magistrate and that he should in all cases require formal proof of such documents or that he should in all cases require the original documents to be filed. I cannot, therefore, accept the recommendation of the learned Additional Sessions Judge that the case should be remanded to the learned Magistrate for fresh adjudication after allowing both the parties to adduce proper and legal evidence. The learned Additional Sessions Judge is directed to dispose of the revision petition in accordance with law on the basis of the material already on record. Ordered accordingly. Order accordingly.