KESHAB ACHARYA Vs. SOMEHATH BEHERA

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Mayurbhanj for setting aside an order under Section 145, Criminal P. C. , passed by a First Class Magistrate of Udala,

(2.) THE learned Magistrate drew up the proceeding under Section 145, Criminal P. C. , on the 8th December 1956. On the 31st December 1956 both parties filed written statements and affidavits as permitted by the recent amendment to Section 145, Criminal P. C. The learned Magistrate heard the Pleaders for both parties on the 18th January 1957 and passed the following order: "heard Pleaders of both parties. But I am not satisfied in respect of the possession over the suit land, of either party. Let the first party come with all evidence, oral and documentary, on the 8th February 1957. " On the 20th March 1957 five witnesses were examined for the first party and on the 11th May 1957 four witnesses were examined for the second party. Then, on the 29th May 1957 the learned Magistrate declared the first party to be in possession of the disputed property.

(3.) THE Sessions Judge in his referring order has pointed out that the learned Magistrate committed an illegality in examining witnesses Nos. 1, 4 and 5 of the first party and witnesses Nos. 1, 3 and 4 of the second party inasmuch as they had not put in their affidavits in support of the respective claims of either party, as required by Subsection (1) of Section 145, Criminal P. C. According to the Sessions Judge the first proviso to Sub-section (4) of Section 145 authorises the Magistrate to summon and examine only those persons whose affidavits have been put in and the examination of persons who have not put in their affidavits would be illegal. He relied on a recent decision of the Mysore High Court, reported in Dodda Revenna v. T. V. Narayana Murty, AIR 1957 Mys 43 (A), where the aforesaid view was taken and it was further observed that the words "hear the parties" occurring in Sub-section (4) of Section 145, Criminal P. C. , would mean "hear the arguments of parties" and would not include taking the evidence of the parties if they desire to appear as witnesses.