BAHORI KALLOO Vs. GHURE BALWANT

JUDGEMENT

(1.) THIS is an application for setting aside an order dated 27-6-1958 passed by the Sub Divisional Magistrate of Bharatpur in a proceeding under Section 145 of the Criminal Procedure Code. The petitioner in this Court was first party to the proceeding. The dispute relates to lands comprising an area of 40 1/4 bighas in village Shikasana Tehsil Bharatpur. It is not disputed that the opposite party Ghure was a tenant in cultivation of the lands upto 5-6-1955: but it is claimed by the petitioner that the landlords on that date executed a Patta in favour of the petitioner and opposite party No. 2 for cultivation of the lands on payment of rent and that on the said date these lessees were put in possession thereof.

(2.) THE proceeding in question was started on a petition filed by the petitioner on 18-12-1957 wherein it was alleged that the opposite party Ghure threatened to dispossess the petitioner from ''he disputed lands by force of arras and therefore a proceeding, Under Section 145 of the Cr. P. C. , was necessary. Accordingly, on 18-12-1957, the proceeding was drawn up by the Sub-divisional Magistrate, Bharatpur and the lands were directed to be attached. The parties then filed that written statements and affidavits in support of that respective claim to possession. The case of the opposite party Ghure was that he never lost possession of the disputed lands, which he had continued to cultivate all along and the claim of the petitioner that in June 1955 he had obtained possession was false and incorrect. The Sub-divisional Magistrate apart from the evi- dence which had been given by the parties examined as a court-witness the Patwari Nemichand and then after a consideration of the materials on record, passed the order which is now challenged before me declaring that the opposite party was in possession on the date of the proceeding and within two months thereof. He accordingly directed that he should be restored to possession until evicted therefrom in due course of law. The Additional District Magistrate rejected the revision , petition against the order in limine.

(3.) ON behalf of the petitioner, it is urged that the Magistrate had no jurisdiction to examine the Patwari as a court-witness and the order passed, is, therefore, without jurisdiction. Reliance is placed upon the proviso to Sub-section (4) of Section 145 of the Criminal Procedure Code, The proviso says 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. It is contended that there being no affidavit of the Patwari Nemichand filed on behalf of any of the parties, the Magistrate had no jurisdiction to examine him in the enquiry. The argument is clearly misconceived. The proviso is merely an enabling provision of law which entitles the Magistrate to summon and examine any of the persons whose affidavits, have been filed on behalf of the parties if he so desires in order to decide the question of possession; but tile proviso does not preclude the Magistrate from calling as a witness any other person that he thinks proper to examine. Sub-section (9) of Section 145 contemplates such a situation. Sub-section (9) says that the Magistrate, if he thinks fit, at any stage of the proceedings under the Section, on the application of ether party, issue summons to any witness directing him to attend or to produce any document or thing. If on the application of ether party to that proceeding the Magistrate can do so, he can do so equally in the ends of justice of his own accord. Indeed Section 540 of the Code empowers the Magistrate like any court, at any stage of any enquiry, trial or other proceeding under the Code, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; if his evidence appears to be essential to the just decision of the case. In view of these provisions, it is obvious that the contention is unfounded. It would be indeed surprising if the proviso to Sub-section (4) of Section 145 of the Criminal Procedure Code was capable of bearing the interpretation which is sought to be placed upon it by the learned Counsel. In that case it would be difficult for the Magistrate to satisfy the needs of justice even if he thinks that the evidence of a particular witness is necessary in order to decide the matter of possession.