BASHIR AHMAD BHAT Vs. GH QADIR MIR

JUDGEMENT

(1.) THE sole point urged at the time of hearing of this revision petition was that the impugned order was vitiated and unsustainable in law. The impugned order is a composite order under sub -section (1) and last proviso of sub -section (4) of section 145 of the Code of Criminal Procedure. The order is based upon material which includes three affidavits sworn and affirmed before Oath Commissioner. The argument of the learned counsel for the petitioner is that the affidavits could not be read in evidence. The order is therefore vitiated by inadmissible evidence and cannot be sustained in law. For this, he has relied on Section 539 Cr. P. C. which reads : - "Courts and persons before whom affidavits may be sworn Affidavits and affirmations to be used before any court in the State may be sworn and affirmed before such court or any Magistrate or other court in the State, but if the affidavit or affirmation is made outside the limits of the State, it may be sworn or affirmed before any tribunal competent in that behalf according to the law of locality where the affidavit or affirmation is made."

(2.) ON the language of this section it is amply clear that the affidavits and affirmations to be used before any court exercising criminal jurisdiction in the State must be sworn and affirmed before such court or any Magistrate or other court in ths Sate. There are two exceptions to this rule : One of the exceptions is to be found in section 539 itself and the other in section 539 -AA. The first exception is where the affidavit or affirmation is made outside the limits of the State and, the second where the affidavit is to be used before any court other than the High Court under section 510 -A or section 539 -A.

(3.) ON this principle, the affidavits sworn and affirmed before the Oath Commissioner could not be read in evidence in the present case. In basing his satisfaction on such affidavits the learned Magistrate below has acted on evidence which was no evidence in the eye of law. It is true that the affidavits were not the only evidence upon which the learned Magistrate acted but it is obviously difficult to say to what extent his satisfaction was affected by such affidavits. If that be so, then the entire order would be vitiated. In this view, the order is not sustainable and must be quashed.