HARIHAR PATI Vs. BADA PITEI NAIK

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Mayurbhanj, recommending the setting aside of an order dated 5th August, 1960, passed by a First Glass Magistrate of Keonjhargarh in a proceeding under Section 145, Criminal Procedure Code The material facts are as follows :

(2.) A proceeding under section 145, Criminal Procedure Code was initiated on the 6th July 1960 by the Sub -Divisional Magistrate, Keonjhar, and it was transferred to the file of Shri P. C. S. Patra, first class Magistrate, for disposal. On the 3rd August 1960 the first party applied to that Magistrate for the issue of summons to some witnesses saying that on account of the threat by the second party they were not willing to come and swear affidavits on their behalf, and that if summonses were issued to them they might enter appearance and file affidavits. The learned Magistrate on 5th August 1960 heard the parties on the question as to whether under the provisions of section 145, Criminal Procedure Code as amended he could issue summons to witnesses with a view to enable them to file affidavits. Eventually he held that in view of the first proviso to sub -section (4) of Section 145, Criminal Procedure Code (as amended) he could summon only those witnesses who have already filed affidavits before him and that witnesses could not be summoned merely for the purpose of enabling them to file affidavits in the proceeding. His attention was invited to sub -section (9) of section 145, Criminal Procedure Code but he observed that that sub -section cannot override the clear language of sub -section (4) of Section 145, Criminal Procedure Code The learned Sessions Judge considers this view of the Magistrate to be wrong and has therefore made this reference.

(3.) IN AIR 1960 Raj 15 there was a reference to the powers of the High Court under Section 540 Criminal Procedure Code But in the present case this question is somewhat academic, because here no prayer was made to the Court to summon the witnesses in exercise of its powers under that section. Indeed this question could not possibly arise at the stage because the parties had just then entered appearance before the Magistrate and had riot even put in the affidavits of their witnesses. The Court has undoubtedly wide powers under Section 540, Criminal Procedure Code to summon any witness at any stage of the enquiry for the ends of justice, but it is obvious that this power should not be used to enable a party to circumvent the provisions of sub -section (4) of Section 145, Criminal Procedure Code It is a special power that should be used sparingly on appropriate occasions.