KAMESHWAR SINGH Vs. OM PRAKASH TYAGI

JUDGEMENT

(1.) THIS application in revision arises out of proceeding under Section 145 CrPC. An application under Section 145 CrPC was filed by Om Prakash Tyagi on 4th November, 1976 in which he alleged that the opposite parties wanted to take forcible possession of the standing crop on the disputed plots giving rise to an apprehension of breach of peace. The sub-Divisional Magistrate called for a report from the Station Officer. Being satisfied as to the existence of an apprehension of breach of peace, he passed a preliminary order on 3rd July, 1976 directing the parties to file their written -statements. Both the parties filed their written statements in support of their claims. In support of the written -statements of the opposite parties, two affidavits of Shahmal and Khurshed were filed. These affidavits had not been sworn before the Magistrate who had session of the case under Section 145 CrPC. Other documents were also filed. Both the parties also adduced oral evidence. The Magistrate on a consideration of the evidence on the record, came to the conclusion that the second party viz. Kameshwar Singh and another were in possession of the plots in dispute. He, therefore, restrained the first party from interfering with the possession of the second party. Aggrieved thereby a revision was filed by Om Prakash Tyagi before the Sessions Judge, Meerut, which has been allowed on 17th October, 1978, hence this revision by the second party.

(2.) COUNSEL for the applicant has argued that the Sessions Judge has acted illegally in the exercise of his jurisdiction in holding that the affidavits of Shahmal and Khurshed which had not been sworn before the Magistrate could not be read in evidence. The Sessions Judge had relied upon a case reported in AIR 1977 SC page 407- Chhotan Prasad Singh v. Hari Dusadh, wherein it has been held that "Affidavits sworn or affirmed before Magistrates who are not in seisin of the case under Section 145 of the Code, could not be read in evidence under that section.........

(3.) THE next relevant section in this; connection is Section 274 CrPC (new) which runs as follows : -