AVADH PATI SINGH Vs. RAJ BAHADUR SINGH

JUDGEMENT

(1.) THIS application under Section 482 CrPC (new) has been filed for quashing the order dated 18-1-75 passed by the S. D. M. Dalmau at Rae Bareli in Case No. 44 of 1974 under Section 145 CrPC and also the order dated 22-7-75 passed by the II Addl. Sessions Judge, Rae Bareli in Cr. Rev. No. 3 of 1975 which arose out of the aforesaid order of S. D. M. Dalmau.

(2.) THE undisputed facts of this case are that on 13-6-74 i. e., after the coming into force of the new Code of Criminal Procedure of 1973 the applicants filed an application under Section 145 CrPC before the S. D. M. Dalmau at Rae Bareli informing him that there was a dispute amongst them and opposite parties 1 to 20 of this application regarding possession of grove 'plot No. 568 situate in village Uttara Gauri within the circle of police station Lalganj in the district of Rae Bareli whereby there was an apprehension of breach of peace. THE learned S. D. M. passed a prelimiary order whereby he called upon the parties to file written statement etc., and through the same order he attached the subject matter of dispute. THE parties filed written statements and affidavits besides documentary evidence. After considering that evidence the learned S. D. M. held the second party to be in possession of the subject matter of dispute at the relevant time. He, therefore, passed an order on 18-1-75 forbidding the petitioners from interfering with the possession of the second party over the disputed property and directing the Station Officer concerned to release the attached property in favour of the second party. THE petitioners filed Cr. Rev No. 3 of 1975 against that order of the learned S. D. M. but it was dismissed by the II Addl. Sessions Judge, Rae Bareli on 22-7-75. THEy have now come up with this petition.

(3.) THE first contention on behalf of the applicants with respect to the illegality of the impugned orders of the learned S. D, M. and the revisional court is that the order of the learned S. D. M. is based mainly upon the affidavits filed by the parties, though under Section 145 CrPC of the new Code of Criminal Procedure oral evidence and not evidence on affidavits is to be received by the Magistrate while holding an inquiry about possession of the subject- matter of dispute under Section 145 CrPC. I find force in this contention. Section 145 (4) of the Code of Criminal Procedure, 1898 specially laid down that evidence on affidavits has to be tendered by the parties with respect to their claim. THE word 'affidavits' is missing from Section 145 (4) of the new Code. It, on the other hand, lays down that the Magistrate shall "receive all such evidence as may be produced by the parties". THE omission of the word "affidavits' occurring in the old Code and substitution of phrase "receiving of such evidence" in the present Code is a clear indication of the fact that the new Code of Criminal Procedure does not recognise evidence on affidavits in inquiries under Section 145 CrPC and insists upon oral and documentary evidence Section 274 (1) CrPC (new) again lays down that in all summons cases tried before a Magistrate, in all inquiries under Sections 145 to 148 (both inclusive) and in all proceedings under Section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of his evidence in the language of the Court, provided that if the Magistrate is unable to make such memorandum himself he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court and it shall be signed by him and shall form part of the record. This provision again indicates that in inquiries under Section 145 CrPC oral evidence of the witnesses has to be recorded by the Magistrate concerned. Section 296 (1) CrPC (new) permits tendering of evidence on affidavits only when the evidence is of a formal character. Evidence of possession required for the purpose of an inquiry under Section 145 CrPC can never be said to be evidence of a formal character. I am, therefore, of the opinion that it was not open to the learned S. D. M. to admit evidence on affidavits regarding possession of the subject-matter of dispute. That evidence relied upon by him is no evidence in law, and the finding of possession based by him upon that inadmissible evidence cannot be said to be a legal finding.