S JODH SINGH Vs. MAHANT BHAGAMBAR DASS

JUDGEMENT

(1.) THIS revision petition raises a question of the interpretation of Sub-sections (4) and (9) of Section 145 of the Criminal Procedure Code and in view of the importance of the question the matter was referred to a larger Bench when the petition came up before me sitting in Single Bench.

(2.) THE facts giving rise to the dispute may briefly be stated as under: With regard to a chabutra in Ludbiana attached to a religious institution there was a dispute between two rival parties and on the report of the police the chabutra was attached and notice was issued to both the parties to put in written statements and documents in support of their respective claims to the possession of the same. When the parties, after service, appeared before the Court on 2lst August 1958, the case was adjourned till 12th September, 1958, to enable the parties to produce affidavits of such witnesses as they may deem fit. On the latter date, affidavits of seven person were put in on behalf of the first party and affidavits of twenty six persons on behalf of the second party (petitioners in the present petition ). The Court summoned some witnesses for 1st October, 1958. On that date an application was put in on behalf of the first party (the respondents in the present petition) asking for permission to file affidavits of a number of other persons on the plea that they could not file those affidavits earlier because their counsel Mr. B. S. Thapar had gone to Kashmir. Objections having been taken, to the entertainment of affidavits at that late stage, the case was adjourned on a number of hearings for arguments when ultimately on 9th December 1958, the learned trial Magistrate held that further affidavits could not be allowed at that stage under the provisions of law. He, however, further remarked that the party concerned could apply to the Court to summon any witness under Section 145 (9), Criminal Procedure Code, at any stage when necessary orders will be passed. Against this order the first party went up in revision to the Sessions Court. The point urged before the learned Additional Sessions Judge, who heard the revision, was that in case affidavits of additional witnesses sought to be put in by them were not allowed to be taken on the record they would not, under the law, be able to examine those persons as their witnesses and in support of this contention they placed reliance on Keshab Acharya v. Somenath Behera, AIR 1958 Orissa 79. However, the learned Additional Sessions Judge felt that no good reasons had been assigned for the non-production of thc affidavits at the proper stage and! that the trial Court was justified in refusing to receive the same when offered at a late stage and consequently dismissed the revision petition. No further revision was filed against this order in this Court. Later on behalf of the first party an application was made that 51 witnesses mentioned in the list attached to the application may be summoned as witnesses on their behalf. The learned trial Magistrate on 7-7-59 ordered that 10 out of them, mentioned in the order, may be summoned. The present revision has been filed by the second party against the aforesaid order.

(3.) THE sole point requiring decision is whether in view of the amended provisions of Sub-section (4) of Section 145, Criminal Procedure Code, any party to the proceedings has a right to have a witness summoned with a view to examine him even if no affidavit of such a person has been filed? For the proper decision of the point in controversy, it is necessary to refer to the provisions of Sub-sections (1), (4) and (9) of Section 145. Out of them Sub-section (1), as it originally stood prior to the amendment incorporated by the amending Act, XXVI of 1935, provides that a Magistrate, if satisfied that the dispute was likely to cause a breach of peace, may issue a notice to the parties concerned to attend his Court at a time to be fixed and "to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. " By the amendment, the following words have been added: