KAPURU Vs. GULABA

JUDGEMENT

(1.) This referencee has been made by the learned Sessions Judge, Mahasu, Sirmur, Bilaspur and Kinnaur Sessions Division, recommending that the order of the learned Magistrate first class, Arki, in a case under section 145, Cri. P. C., be set aside and the case remanded to him for passing fresh orders after making proper inquiry as required by Sub-section (1) of Section 145, Cri. P. C.

(2.) It appears that the parties to the proceeding did not file any affidavit and instead examined Witnesses in support of their respective cases. The learned Sessions Judge was of the opinion that the aforesaid procedure was in contravention of Sub-section (1) of Section 145, Cri. P. C., and the order of the learned Magistrate was liable to be quashed on that score. In arriving at that conclusion he relied upon the cases reported in AIR 1959 (1955 is obviously a mistake) All 763, Bhagwat Singh v. State and S. Jodh Singh v. Bhagambar Dass, 63 Pun LR 63: (AIR 1961 Punj 187).

(3.) Ira the AIR 1959 All 763 case the opposite parties did not file any affidavit and got summonses issued for four witnesses and examined them. The Magistrate found that the opposite parties were in possession of the disputed land. An application in revision was filed by the applicants and it was contended that the Magistrate had no jurisdiction to examine witnesses orally and the proceeding was vitiated on that ground. This contention found favour with M.C. Desai, J. (now the Chief Justice of the Allahabad High Court).