SURESHKUMMR Vs. RAMCHANDRA

JUDGEMENT

(1.) THE only point urged in support of this revision application is that the Magistrate had no jurisdiction to permit the non-petitioners to cross examine the deponents of the affidavits produced by the petitioners in the proceedings under section 145 Cr. P. C. before the Magistrate THE only ruling relied upon by the learned counsel in support of this contention is Janga Reddy vs. Hafezunnisa Begum (1) wherein the learned single Judge observed that since a reference under Section 146 Cr. P. C is not a proceeding within the meaning of the word used in section 141 C. P. C. the provisions of that section are not attracted to such reference. He further held that in this view of the matter, an application under O. 19, Rule 2 for cross examination of the deponents of the affidavits in such a reference is not maintainable. However, in Ramchandra Agarwal vs. THE State of U. P. and another (2) their Lordships of the Supreme Court were pleased to hold that the provisions of the Civil Procedure Code would apply generally to a proceeding before a Civil Court arising out of a reference to it by a Magistrate under section 146 (1) of the Criminal Procedure Code. Now if by virtue of section 146 (1) the Civil Court took proceedings, it cannot be said that the Magistrate in the present case had no jurisdiction to permit cross examination of the deponents of the affidavits produced by the petitioners. Learned counsel submits that O. 19, R. 2 C. P. C. applies only to an interlocutory appli-cation but does not apply to applications of substantive nature. In support of this contention he has relied upon Federal India Assurance Co. Ltd. vs. Mandrao Pandura-ngrao Dixit (3 ). He has further argued that since the application under O. 19, R. 2 was made by the non-petitioners after great delay, the Magistrate was not justified in granting permission.

(2.) IT may be pointed out that reference under sec. 146 (1) Cr. P. C. is neither an application of interlocutory nature nor an application of substantive character, but it is only an enquiry as provided in sec. 146 (1b) of the Code of Criminal Procedure, 1898. The Nagpur authority has, therefore, no application to the present case. Apart from that by reading the provisions of O. 19 Rules 1 and 2 C. P. C. together, the irresistable conclusion is that the court has power in such an enquiry where affidavits are admissible as a piece of evidence, to permit cross examination of the deponents of such affidavits at the request of the opposite party.