EBRAHIM KUNJU MUHAMMED KUNJU Vs. SHAHABUDEEN

JUDGEMENT

(1.) In this revision petition arising out of a proceeding under S.145 of the Code of Criminal Procedure, two questions are raised by the petitioner, a member of the B Party. The first is whether the petitioner can summon members of the A party as witnesses. The Executive First Class Magistrate has answered this question in the negative following the decision of this Court in Narayana Pillai v. Kalliyani Amma ( 1963 KLT 537 ) observing that the practice of a party causing his opponent to be summoned as a witness was disapproved in rather strong terms by Their Lordships of the Privy Council and that as a matter of right a party cannot have the opposite party examined as a witness. And on this question no serious argument has been adduced; and the decision of the magistrate is therefore upheld.

(2.) The second question is whether the petitioner can summon, under sub-s.9 of S.145, persons other than those who had filed affidavits as contemplated by sub-s.1 of the section. On this question two lines of decisions have been brought to my notice. Decisions like Bhagwat Singh v. State (AIR 1959 All. 763) and S. Jodh Singh v. Mahant Dhagambar Bass (AIR 1961 Pun. 187) take the view that under sub-s.9 only such persons who had filed affidavits under sub-s.1 can be called. And decisions like Kanhaiyalal v. Devi Singh (AIR 1961 Mad. Pra. 302), Mirza Mohd. Aziz v. Safdar Husain (AIR 1962 All. 68) and Challamuthu Padayachi v. Rajavel ( AIR 1964 Mad. 263 ) take the wider view that under sub-s.9 any person, not necessarily a person who had filed an affidavit, can be called. (I am not referring to all the decisions brought to my notice).

(3.) S.145 of the Code of Criminal Procedure has been amended in 1955, the object of the amendment being to allow the court to dispose of a proceeding under that section on affidavit evidence, sub-s.1 has been amended by adding that the court when issuing a notice shall further require the parties to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of their claims. Sub-s.4 has also been amended; and the court is given power to decide the dispute by pursuing written statements of the parties, documents and affidavits put in by them and also after hearing them. A time limit of two months, as far as may be practicable, from the date of appearance of the parties is also fixed for concluding the enquiry. A new proviso has been added to the sub-section that the magistrate may, if he so thinks fit, summon and examine any person whose affidavit had been put in as to the facts contained therein. The two provisos to sub-s.4 already existing have also been retained, sub-s.9 of the old section which ran