JUDGMENT D.P. Uniyal, J. - This is a reference by the Civil and Sessions Judge, Deoria in proceedings under Section 145 Cr.P.C. The case was heard by B. Dayal, J. who was of the view that the decision in Wahid and another v. State, AIR 1963 Allahabad 256 did not lay down the correct law. He accordingly directed the case to be laid before Hon'ble the Chief Justice the case was then laid before Capoor and Tripathi, JJ. who differed in their opinion but pointed out the desirability of the case being heard by a larger Bench. The whole case was then placed before a Full Bench of which I was a member. The Full Bench came to the conclusion that in view of the difference of opinion between two learned Judges of this Court the proper course under the law was to lay the case for opinion before a third Judge. It is in these circumstances that this matter has been placed before me. 2. The point for consideration is whether the affidavits filed in 145 proceeding by the opposite party and sworn and verified before an oath commissioner were legally admissible. No objection appears to have been taken before the Sub-Divisional Magistrate as to their admissibility. However, the point was directly raised in revision before the Learned Judge below who has made the above reference to this Court. 3. Section 145(1) lays down that whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause breach of the peace exists concerning any land etc. 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 inter alia to put in written statements of their respective claims and other evidence or to adduce by putting in affidavits the evidence of such persons, as they rely upon in support of such claims. 4. By this section evidence by way of affidavits has been permitted to prove possession in respect of the subject matter of dispute. There is, however, nothing in the section to indicate as to how and in what manner and before which court or person the affidavit may be sworn. 4. By this section evidence by way of affidavits has been permitted to prove possession in respect of the subject matter of dispute. There is, however, nothing in the section to indicate as to how and in what manner and before which court or person the affidavit may be sworn. There are various provisions in the Code which require affidavits to be taken by way of evidence but none of them deals with Section 145 as such. For understanding the point that arises in the case it is necessary to look into some of the provisions of the Code requiring the filing of affidavits. Section 74(1) lays down:- "When a summon issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, and affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved. Section 539 :- Affidavits and affirmation to be used before any High Court or any officer or such Court may be sworn and affirmed before such Court or the Clerk of the State, or any Commissioner or other person appointed by such Court for that purpose, or any Judge, or any Commissioner for taking affidavits in any Court of Record in (India) or any Commissioner to administer oaths in England or Ireland, or any Magistrate authorised to take affidavits or affirmation in Scotland." Section 539-A (1):- When any application is made to any Court in the course of any inquiry, trial or other proceedings are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that evidence relating to such facts be so given. Section 539-AA(1):- An affidavit to be used before any Court other than High Court under Section 510A or Section 539A may be sworn or affirmed in the manner prescribed in Section 539 or before any Magistrate. Section 539-AA(1):- An affidavit to be used before any Court other than High Court under Section 510A or Section 539A may be sworn or affirmed in the manner prescribed in Section 539 or before any Magistrate. Section 510A(1) :- The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. 5. None of the sections quoted above are applicable to Section 145 Cr.P.C. so that an affidavit sworn before an oath commissioner and tendered as evidence in proceedings under Section 145 would be inadmissible. 6. The learned counsel submitted that evidence relating to possession in proceedings under Section 145 was evidence of a 'formal' character and was covered by the provisions of Section 510A. The expression 'formal character' has not been defined in the Code. The natural and grammatical meaning of the word 'formal' cannot embrace evidence which is of an essential nature and would be decisive of the controversy arising between the parties, as would be the case in proceedings under Section 145 Cr.P.c. 7. Websters New International Dictionary defines the word 'formal' as follows:- "Pertaining to form, done in due form, having the form or appearance without the substance or essence." 8. Formal evidence therefore is that evidence which is not substantive evidence and which relates to the forms and not the substance of he matter. In the very nature of thinks affidavits testifying possession of parties cannot be a matter of form; if anything, it is the very essence of the matter in the controversy between the parties. Since the procedure envisaged under Section 145 is of a summary character, the legislature has provided for filing of affidavits as substitute for oral testimony, nevertheless, it is evidence relating to the factum of possession and cannot be regarded as evidence of a 'formal' character within the meaning of Section 510A Cr.P.C. It was conceded that Section 539 and 539A are not attracted to proceedings under Section 145 Cr.P.C. and indeed the Code does not prescribe any mode in which the affidavits under SEction 145 may be sworn. One has therefore to fall back upon the general rule that affidavits receivable as evidence under sEction 145 must be sworn before the Magistrate who is seized of the case. 9. One has therefore to fall back upon the general rule that affidavits receivable as evidence under sEction 145 must be sworn before the Magistrate who is seized of the case. 9. The second submission of the learned counsel was that the affidavits sworn before an oath commissioner were legal evidence in that he was a person who was authorised by law to receive evidence under Section 4 of the Indian Oaths Act. Section 4 prescribes the authority competent to administer oaths and affirmations. That section reads:- The following courts and persons are authorised to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law: (a) all courts and persons having any law or consent of the parties authority to receive evidence" 10. Now the question arises who are the courts and persons authorised by law to receive evidence? The law applicable in the present case is the Code of Criminal Procedure. Under the Code no person other than the Magistrate who is seized of the case is competent or authorised to receive evidence. It follows that affidavits sworn before a court or person having no such authority would not be legal evidence in the same way that a Magistrate of the First Class, having no jurisdiction to make an order under Section 145 Cr.P.C. is not competent to administer oaths and affirmations to a person swearing an affidavit. This was the view taken by the Calcutta High Court in Nandlal Ghose v. Emperor, AIR 1944 Calcutta 283. "Where an affidavit by the accused in a criminal proceeding was sworn before a First Class Magistrate who had no jurisdiction to take evidence in the matter in respect of which the accused was prosecuted, under Section 193 and 199 for filing a false affidavit." 11. I respectfully agree with the above observations and hold that the affidavits filed by the opposite party in the present case were inadmissible in evidence as the same were sworn before an oath commissioner who was not an authority competent to administer oath to witnesses in proceedings under Section 145 Cr.P.C. The opinion expressed in Wahid's case (supra) and followed by Capoor, J. is, in my opinion, sound. 12. 12. For the reasons given above, I hold that the affidavits filed by the opposite party in the Magistrate's court were not admissible in evidence as the same were not sworn before the Magistrate trying the case, I therefore accept the reference and remand the case to the court of the trial Magistrate for disposal according to law. This opinion shall be laid for orders before the Bench concerned. 13. S.K. Verma, J.- This criminal reference was heard by a Division Bench consisting of Capoor and Tripathi, JJ. They differed, and, therefore, they passed the following order:- "In view of the difference between us as the result of this reference the record of the case may be laid before the Hon'ble the Chief Justice to pass suitable orders. Further in view of the conflict of judicial opinion on the question of law involved in the the case the desirability of constituting a larger Bench may be considered." 14. The papers were, thus laid before the Hon'ble the Chief Justice who directed the case to be laid before us. A question had been raised with regard to the competence of the reference. Our attention has been invited to section 439 of the Code of Criminal Procedure, which, inter alia, provides that, "when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429." Section 429 of the Code of Criminal Procedure reads as follows:- "When the Judges composing the Court of appeal are equally divided in opinion, the case with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment, or other shall follow such opinion." 15. The combined effect of the two provisions mentioned above appears to be that when there is difference of opinion between the Judges composing the Court of revision the case has to be laid before another Judge of this Court. When the statute says that a particular procedure shall be followed on the happening of a contingency then that procedure and no other must be followed. 16. We, therefore, direct that the papers be laid before the Hon'ble the Chief Justice for suitable orders.