GHULAM MOHAMMAD Vs. HARI CHAND

JUDGEMENT

(1.) THIS revision petition Under Section 439 read with Section 561-A of the Cr. PC arises out of the following facts: An application Under Section. 145 Cr. PC was instituted in the court of Addl. District Magistrate (Asstt. Commissioner) ri 1974 and also submitted a number of affidavits in support of his contention. The Patwari's statement appears to have been recorded Under Section. 540-A Cr. PC The learned Addl. District Magistrate vide his order datel 7-9-1976 allowed the application and held that the land is dispute bearing Khasra No. 60 situate in village Badhiara was in possession of the applicant and, therefore, directed that he should continue to remain in possession of the same without any disturbance from the non- applicant. Aggrieved by this order the matter was taken up to the Sessions Judge, Poonch, Camp Rajouri, in revision by the petitioner herein. The learned Sessions Judge vide his order dated 25-3-1977 found no illegality or impropriety in the order of the trial Magistrate, and, therefore, confirmed the same. This revision petition has been directed against this order of the learned Sessions Judge.

(2.) THE petitioner herein has submitted that the order of the Addl. District Magistrate, Rajouri, was illegal, and was based on evidence which was legally not admissible and that the learned Sessions Judge has also failed to apply his mind to the facts of the case and dispose of the matter in accordance with law.

(3.) HIS first contention was that the affidavits submitted by the petitioner herein were refused to be considered by the trial Magistrate as evidence and were rejected on the ground that the same were attested and sworn before a Notary. His submission was that the trial Magistrate should not have rejected such important pieces of evidence as the same according to him, could not have been done under law. He admitted that in Chhotan Prasad Singh v. Hari Dusadh, reported in affidavits sworn before a Magistrate other than that who was trying the application Under Section. 145 Cr. PC have been held not to be admissible in evidence yet his learned counsel submitted that the facts appearing in the instant case were distinguishable from those appear-ing in the Supreme Court case (supra) and therefore, contended that the reliance placed on the said judgment by the trial court was misplaced which has consequently led the Magistrate to entirely wrong conclusions. His submission was that in the instant case the affidavits submitted by the petitioner herein were not attested and had not been sworn before a Magistrate but before a Notary appointed under law for the purpose. He therefore, submitted that the rejection of the affidavits produced by the petitioner herein in the court below was improper and illegal. I am, however, afraid that this contention of the learned counsel could not be entertained. The point for consideration in appeals by special leave before the Supreme Court was whether affidavits sworn or affirmed before Magistrates who were not seized of the case Under Section. 154 Cr. PC could be read in evidence in that case. The High Court had held that such affidavits were inadmissible in evidence after discussing the law on the point. Their Lordships of the Supreme Court agreeing with the High Court were pleased to say as follows in Para 8 of the judgment: As the High Court has rightly held in the two impugned judgments that the affidavits were inadmissible in evidence as they were sworn before Magistrates who were never in seisin of the case, we find no force in these appeals and they are hereby dismissed. Their Lordship of the Supreme Court after discussing the implications of Sub-section (3) of Section 3 of the General Clauses Act and also relevant provisions of the Oaths Act 1873 as well as Oaths Act of 1969 were further pleased to observe as follows (at p. 251 of 1977 Cri. LJ): It is therefore, clear that all courts and persons having by law or consent of parties authority to receive evidence are authorisd to administer oaths and affirmations, but they can do so only where they are otherwise acting "in the discharge of the duties, or in exercise of the powers imposed or conferred upon them respectively by law. So the Court or person mentioned in Clause (a) of Section 4 of the Oaths Act can administer oath or affirmation to the deponent in an affidavit only if the court or person is acting in the "discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law. The learned counsel for the petitioner herein further submitted that the above mentioned judgment of the Supreme Court was mainly based on the interore-tation of Section 4 of the Oaths Act, 1969 but as the Oaths Act was not applicable to the State of Jammu and Kashmir the facts appearing in and the law applicable to the case before the Supreme Court were obviously different from those appearing in the instant case, and therefore, the principle of law enunciated therein was not applicable to the case at hand. This contention of the learned counsel for the petitioner herein is also without any force, as admittedly the Oaths Act though not applicable to the State of Jammu and Kashmir but the State of Jammu and Kashmir has framed Rules namely, the Judicial Oath Rules, 1950, which are almost an exact copy of the provisions of the Oaths Act in force in the rest of the country. Rules 3 and 4 of the Judicial Oaths Rules of the State are in particular the exact copy of Sections 3 and 4 of the Oaths Act, 1969, and as Sections 3 and 4 of the Oaths Act have been considered in regard to this matter in case the reasoning given therein is ipso facto applicable for the interpretation of the Rules 3 and 4 of the Judicial Oaths Rules of the State. The distinction tried to be drawn by the learned counsel for the petitioner herein between the Act in force outside the State and the Rules prevalent in the State is misconceived as there appears to be no justification for making such a distinction.