RAM KUMAR AND TWO ORS. Vs. ANGUDA GOUNTIA

JUDGEMENT

(1.) THIS is a reference by the Additional District Magistrate of Bolangir recommending the setting aside of the order of Shri B.N. Parija Magistrate First Class, Sonepur, rejecting the prayer of the second party to swear affidavits after the proceeding under Section 145 Code of Criminal Procedure was practically closed and posted for orders. That proceeding was initiated on 8 -9 -1962 and after the parties filed their respective affidavits, the learned Magistrate heard the parties on 28 -5 -1963 and posted it to 18 -6 -1963 for orders. In the meantime on 31 -5 -1963 the second party filed some more documents and wanted them to be taken into consideration. The learned Magistrate by his order dated 18 -6 -1963 observed that at that late stage except public documents (sic) other documents would be accepted. The learned Additional District Magistrate in his order of reference is of opinion that this view of the learned Magistrate was wrong and that under Sub -section (9) of Section 145, Code of Criminal Procedure it was open to the Magistrate to summon fresh witnesses and produce other documents required for the purpose of this case.

(2.) THE question is more one of propriety than of legality. I have already held in Criminal Reference No. 178 of 1963 disposed of on 6th March 1964, that a Magistrate can examine as witnesses for a party only those persons whose affidavits have been sworn (following, 24 C.L.T. P7 and, 25 C.L.T. 86). But I also made it further clear in that judgment that this does not in any way fetter the discretion of the Magistrate under Section 540, Code of Criminal Procedure -though the powers under that section should not be exercised merely to help a party to fill up gaps in the evidence but should be exercised only to enable the Magistrate to arrive at a just decision of the case. Any improper exercise of discretion by the Magistrate will be corrected by the Court of Revision. The Magistrate has undoubtedly wide discretion to allow either party to file additional documents, whether public or private, even after arguments are closed, provided that, in fairness to the other side, he gives that party a further opportunity to file additional documents by way of rebutting evidence.