TIRMAL RAO AND ANOTHER Vs. BHINANNAH AND ANOTHER

JUDGEMENT

(1.) This is a revision petition against the order of the First Class Magistrate Both, rejecting the petition of the respondents (second party) for summoning all the witnesses of the first party or at least the witness Hanumantha Reddy patwari, whose affidavit has been filed on behalf of both the parties. The proceeding in which this order was passed was one under section 145, Criminal Procedure Cade. Both the parties filed the affidavits along with the written statements as warranted by section 145, Criminal Procedure Code in pursuance of the Court's order. Hanumantha Reddy was a witness fit both the parties and his affidavits were, therefore, filed on behalf of both them.

(2.) The learned Magistrate on the application made by the second part observed that since the affidavits have been filed, it was unnecessary to summons all the witnesses or any one of them for cross-examination and that he found no difficulty and was in a position to draw the necessary inference from the evidence adduced through affidavits and thus rejected the application. It is ibis order which has been challenged. The learned counsel on behalf of the revision petitioners argues that, no doubt, as a result of the amendment of section 145, Criminal Procedure Code, ordinarily possession in question ought to be decided on affidavits only, but when a party makes a request to the Court to examine a particular witness, in the interests of justice, it is obligatory on the Magistrate to grant such request. Stress has been laid on the wording of the proviso which, in the opinion of the learned counsel, supports hit proposition. It is not disputed that such an intendment of the provision is not apparent from the words used, but it is argued that provisions of section 145 being based upon public policy the word "may" used in the said section ought to be interpreted as connoting something obligatory and not merely directory. His contention, therefore, is what is intended by the expression the Magistrate may if he thinks fit", is that the Magistrate must, at all events, merely on the application of the party summon and examine the person whose affidavit has been filed. Reliance has been placed on the observation of Lord Cairns in the case of Julius v. The Bishop of Oxford 1980 LR 5 AC 214 cited in the Privy Council case in Alcock Ashdown and Company, Ltd v. The Chief Revenue Authority, Bombay (1923) 45 MLJ 592 : LR 50 IA 227 . These observations which relate to the construction of the terms "may" or "shall" according to the policy and purpose of legislation and in the context of things do not help the case of the petitioners. Not only the expression used is explicit but also the whole drift of the lection makes it abundantly clear that being an inquiry of summary nature affidavits and not the oral testimony should, as far as possible, form the basis of conclusions. It should be noted that the section as previously drafted permitted both the parties to adduce oral evidence and no order could be passed without examining all the witnesses on their behalf. But the amendment effected by Act XXVI of 1955 marks a complete departure from this principle in as much as it introduces a method of proof by affidavits of persons on whom the parties rely in support of their case. This is sufficient to demonstrate that for the purposes of the inquiry affidavits alone are essential and not the oral statements. However, the proviso to section 145 (4) empowers the Magistrate, to "summon and examine any person whose affidavit has been put in as to the facts contained therein". But, it is entirely left to his discretion and does not give a right to the party to have them summoned or examined. The essential requisite for summoning any such witness is that the Magistrate must think it fit to do so. It cannot be Stated that a request or an application of a party in this behalf by itself is a sufficient ground for the Magistrate to think it fit to summon a witness. The Magistrate must come to the conclusion that notwithstanding the affidavit, evidence of the witness is necessary for coming to a conclusion in relation to the fact at issue. Adducing of evidence by way of documents and affidavits being a rule and oral testimony being an exception to be permitted only at the discretion of the Magistrate, it is no doubt necessary to exercise such discretion only in fit cases. Further, its exercise should be judicial and no arbitrary. The learned Magistrate in the instant case has not thought it fit to examine any witnesses including Hanumantha Reddy. His affidavits filed on behalf of both the parties do not appear to have clouded his mind with any doubt which he may think it necessary to clarify. As a matter of fact, the learned advocate for the respondents stated before me that affidavit of patwari Hanumantha Reddy filed on behalf of the first party is not substantially different from the one filed on behalf of the second party and that he has no objection if the affidavit of Hanumantha Reddy filed on behalf of the first party be ignored and that filed on behalf of the second party may alone be taken into consideration. In these circumstances, I do not think there should be any ground for grievance for the second party. At any rate it cannot be said that the learned Magistrate failed to exercise his discretion in not summoning the patwari or that the party has a just cause to come in revision at this stage.

(3.) The revision is, therefore, disallowed.