LAWS(J&K)-1969-10-1

AHAD JOO SARWAL Vs. NABIR JOO BICCHU

Decided On October 31, 1969
AHAD JOO SARWAL Appellant
V/S
NABIR JOO BICCHU Respondents

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge, Anantnag, recommending that the order dated 24-12-1968 passed by the Chief Judicial Magistrate, Anantnag, in proceeding under Section 145, Criminal P. C. be set aside as he illegally declined to consider the affidavit evidence produced by the parties (on the ground that the affidavits not having been sworn before him were inadmissible and he be directed to pass fresh orders after considering the affidavits filed on behalf of the parties.)

(2.) THE learned Counsel for the petitioner has submitted that there is nothing in the Code of Criminal Procedure of our State to show that only those affidavits which are sworn before the Magistrate who is seized of the matter under Section 145, Criminal P. C. can be received as evidence and the observation of the learned Chief Judicial Magistrate to the affect that the affidavits not having been sworn before him were inadmissible in evidence is wholly base-less and erroneous.

(3.) THE short question for determination in this reference is as to whether for purposes of proceeding under Section 145, Criminal P. C. it is necessary that the affidavits by witnesses and/or parties to those proceedings should be sworn before the very magistrate who is seized of the matter. Section 145, Criminal P. C. in so far as it is relevant for this case reads: Whenever a District Magistrate, sub-divisional Magistrate, or a Magistrate of the First Class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water, or the boundaries thereof within the local limits of his jurisdiction he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader within the time to be fixed by such Magistrate, and to put in written statement of their respective claims as respect the fact of actual possession of the subject of dispute (and further requiring them to put in such documents or to adduce by putting in affidavits the evidence of such persons as they rely upon in support of such claim ). * * * The Magistrate shall then without reference to the merits or the claim of any such parties to a right to possess the subject of dispute peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the enquiry as far as may be practicable within a period of two months from the date of appearance of the parties before him and if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that the Magistrate may if he so thinks fit summon and examine any person whose affidavit has been put in as to the facts contained therein. . . A plain reading of the provision is enough to show that it does not make it obligatory that the affidavits put in by the parties in support of their respective claims should be sworn before a particular authority, person or Court. In fact, it does not prescribe the manner in which the affidavits so put in are to be sworn or attested.