HARI CHARAN DEB BARMA Vs. HRIDAY RANJAN GHOSH

JUDGEMENT

(1.) THE precise point that arises for determination in this reference made Under Section 488, Criminal P.C., by the Additional Sessions Judge, Tripura, is whether in terms of Sub -section (9) of S. 145, Criminal P.C., it is open to a party to approach the Magistrate with a request to summon a, witness other than one who has filed an affidavit in accordance with the provisions of Sub -section (1) of Section 145 , Criminal P.C.

(2.) THE facts of the case fall within a short compass. The petitioner Hari Charan Deb Birma moved an application before the Sub. Divisional Magistrate, Agartala, on 16 -4.1966 praying that Kabir Khan, a surveyor in the office of the Sub Divisional Magistrate, Sadar, be summoned for swearing affidavit bearing on the possession over the land in dispute. It was mentioned in the application that the evidence of Kabir Khan was necessary to settle the dispute whether the petitioner or the respondent was in possession of the land. The learned Sub -Divisional Magistrate refused to summon Kabir Khaan by his order dated 17 -5 -1966 on the footing "that the case of summons upon witnesses is discouraged in proceedings Under Section 145, Criminal P.C." Aggrieved by that order the instant petitioner went in revision to tho Court of the Sessions Judge, The matter came up for hearing before Shri N. M. Paul, the Additional Sessions Judge, Tripura. He has made a reference to this Court recommending that the Magistrate's order dated 17.5.1966 should be quashed and direction issued to him that ho should summon the witness for swearing an affidavit.

(3.) THE criticism levelled against the second view is that it is in conflict with the aims of the amendments made to Section 145 in the year 1955, the avowed object of which was to shorten the proceedings and to conclude the inquiry at the earliest. If the view that a party has a right under Sub -section (9) to move the Magistrate for summoning a witness who had not filed an affidavit is accepted, the critics of this view point out, the very object of the amendments introduced in 1955 would be nullified and the procedure would become doubly cumbersome instead of being shortened. In my opinion, this criticism is not justified and I say so with all respects to the High Courts subscribing that view. I may mention in passing that in the case of Jodh Singh A.I.R. 1961 Punj 187 (supra) the Punjab High Court observed that the continued existence of Sub -section (9) in its present form is certainly not very apt and requires looking into by the Legislature. However, it will be conceded, until Sub -section (9) is either deleted or amended in such' a way as to correspond with the first view mentioned above, it must carry as much value as any other statutory provision normally does. So long as Sub -section (9) forms part of Section 145 it cannot be consigned to oblivion, nor considered otiose.