SUKAR AHIR Vs. GANPAT KALWAR

JUDGEMENT

(1.) THIS application by the first party to a proceeding under Section 14o, Code of Criminal Procedure, is directed against the final order dated the 26th August, 1969. whereby the learned Magistrate has declared the possession of opposite party, second party to the proceeding. THIS case was in the first instance placed before' S. P. Singh J.. who by his order dated the 12th November. 1971 has referred it to a Division Bench and that is how it has been placed before us.

(2.) THE only point canvassed before us is as to whether the affidavits of the second party which were sworn to before Shri N. Tiwary. Magistrate, but could not be filed before him. and were filed before Shri D. Chandra, who decided the proceeding, would be admissible in evidence under Section 145. Code of Criminal Procedure.

(3.) IT seems to us that the decisions upon which reliance has been placed by Mr. Pandey cannot be extended to that extent. In the case of Mahendra Prasad Sinha (1971 Pat LJR 157) it was decided that if the affidavits are sworn to before a Magistrate who is not in seisin of the proceeding, they are not admissible and cannot be read as evidence in that proceeding. Paragraph 20 of the judgment runs as follows: