ORDER Shivdayal, J. -- 1. This is a reference under section 438, Criminal Procedure Code, arising from proceedings under section 145, Criminal Procedure Code. The only question for determination is whether affidavits sworn by witnesses and parties to proceedings under section 145, Criminal Procedure Code, before a Magistrate other than the Magistrate who took cognizance of the proceedings under section 145, can be read in such proceedings. The question has arisen in these circumstances. 2. Jamuna Prasad (hereinafter called party No.1) moved the Sub-Divisional Magistrate, Sakti, under section 145, Criminal Procedure Code, that the house in dispute was in his exclusive possession and that Triveni Prasad, his wife Mst. Premabai, and his son, Ram Shankar (together hereinafter called party No.2), forcibly took its possession and that there was an apprehension of breach of the peace. Party No. 2 denied the allegations and alleged that party No.1 was not in exclusive possession of the house, and that the house was in joint possession of party No.1 and party No.2, and further that there was no apprehension of breach of the peace. Statements, affidavits and documents were put in by the parties. The Sub-Divisional Magistrate held that party No.1 was in exclusive possession of the house in dispute and made an order restraining party No.2 from interfering with his possession. 3. The affidavits of Ramkumar and Mst. Gomtibai, which were filed on behalf of the first party and relied on by the Sub-Divisional Magistrate had been sworn before the Magistrate 1st Class, Sakti, who was not concerned with the proceedings, and not before the Sub-Divisional Magistrate himself. 4. Aggrieved by the order passed by the Sub-Divisional Magistrate, party No.2 filed a revision. The learned Additional Sessions Judge, Bilaspur, has held that as the affidavits were not sworn before the Sub-Divisional Magistrate, though sworn before another Magistrate, they could not be read as evidence. In his opinion, those affidavits must be excluded from consideration and since there remains no evidence in support of the case of party No.1, his recommendation is that the order of the Sub-Divisional Magistrate must be set aside. 5. In his opinion, those affidavits must be excluded from consideration and since there remains no evidence in support of the case of party No.1, his recommendation is that the order of the Sub-Divisional Magistrate must be set aside. 5. Before the Amendment Act No. 26 of 1955, if the Magistrate was satisfied that a dispute concerning land, etc., existed and it was likely to cause breach of the peace, he was to make an order under section 145 (1) Criminal Procedure Code, requiring the parties to attend the Court and put in written statements of their respective claims as respects the fact of actual possession. After receiving the written statements, he was required under sub-section (4) to peruse the statement, hear the parties, receive all such evidence as was produced by them, consider the effect of such evidence, take further evidence, if he thought necessary, and then decide which of the parties was at the date of the order in such possession. In order to obviate delay consequent upon taking of oral evidence, the section was amended in 1955. Now, sub-section (4) requires the parties to file not only written statements but also to put in documents and to adduce evidence by putting in affidavits of such persons as they rely upon in support of their claims. To put it differently affidavits of persons conversant with the matters in dispute have taken the place of oral evidence under the amended section. The section, however, does not prescribe any particular mode for the affidavits to be sworn. It is to be seen which authority would be competent to administer oath to the deponent of such an affidavit. 6. I would first examine the various provisions contained in the Code of Criminal Procedure pertaining to affidavits. Section 539 of the Code applies only to such affidavits as are to be used in the High Court or before any officer of such Court. That section is, therefore, not relevant. The marginal note of section 539-AA is "authorities before whom affidavits may be sworn." When an affidavit is to be used before any Court, other than the High Court, it may be sworn or affirmed before any Magistrate in the manner prescribed in section 539. But its application is restricted to an affidavit to be used under section 510-A or section 539-A of the Code. But its application is restricted to an affidavit to be used under section 510-A or section 539-A of the Code. The former of these two sections (that is, section 510-A) enables evidence of any person "whose evidence is of a formal character" to be given by affidavit. Now, the evidence by affidavit, which is given under section 145, Criminal Procedure Code is not of a formal character. Undoubtedly, where the evidence of a witness, who is not a party, is allowed by section 145 to be given in the form of an affidavit, and that section requires the Magistrate to read it as evidence it is of a substantial character. Section 539-A permits evidence to be given by affidavit in support of an application made to any Court in the course of any inquiry, trial or other proceeding under the Code and the allegations are made in that application respecting any public servant. Thus, the scope of that section is restricted to an application in which allegations are made "respecting any public servant." That section also, therefore, cannot be invoked for an affidavit to be filed in a proceeding under section 145, Criminal Procedure Code. 7. Under section 145, Criminal Procedure Code, affidavits which are put in are read as evidence. But the Court can only receive legal and admissible evidence. Therefore, an affidavit must be sworn before a competent authority. Section 145 itself does not specify any particular authority before whom such an affidavit may be sworn. As already pointed out above, there is no provision in the Code of Criminal Procedure where a competent authority before whom such an affidavit can be sworn, is named. It is section 4 of the Oaths Act (No. X of 1873) which, therefore, comes into play. Under that general provision, authority to administer oaths and affirmations is vested in Courts and persons having by law or consent of parties authority to receive evidence. 8. Section 4 of the Oaths Act runs thus:- "Authority to administer oaths and affirmations. It is section 4 of the Oaths Act (No. X of 1873) which, therefore, comes into play. Under that general provision, authority to administer oaths and affirmations is vested in Courts and persons having by law or consent of parties authority to receive evidence. 8. Section 4 of the Oaths Act runs thus:- "Authority to administer oaths and affirmations. 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 by law or consent of parties' authority to receive evidence; (b) the Commanding Officer of any military, naval or air force station or ship occupied by troops in the service of Government:-- Provided— (1) that the oath or affirmation be administered within the limits of the station; and (2) that the oath or affirmation be such as a justice of the peace is competent to administer." For the sake of convenience, I would paraphrase the section thus (leaving aside the authorisation of "persons" other than the Court). "All Courts (having by law or consent of parties' authority to receive evidence) are authorised to administer oaths in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law." It is incontestable that all Courts have authority to receive evidence. But the section does not confer on all Courts unrestricted authority to administer oath. The restrictive words are "in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law." The only meaning of this expression is that a Court is not authorised under that section to administer oath merely by virtue of the fact that it is a Court and has authority to receive evidence. The occasion must also be one when it is discharging a duty imposed upon it by law, or is exercising a power conferred upon it by law. It follows from this analysis that, by virtue of section 4 of the Oaths Act, a Court is authorised to administer oath only in a matter before it because then alone it can be said that it is acting in discharge of its duty or in exercise of its power. It follows from this analysis that, by virtue of section 4 of the Oaths Act, a Court is authorised to administer oath only in a matter before it because then alone it can be said that it is acting in discharge of its duty or in exercise of its power. The adverbial phrase "in discharge of the duties..." cannot be read as modifying "receive" in clause (a). It undoubtedly modifies "administer". In my opinion, the argument that the phrase "in discharge of the duties. . . . ." has reference to "persons" and not to Courts as well, must be rejected, as that construction would be repugnant to the language of the section. 9. I confess that on the first reading of the section, I thought that it is sufficient if the Court administering oath is competent to exercise jurisdiction in a proceeding in which the affidavit sworn before him is to be filed and since under section 145, Criminal Procedure Code, a Magistrate of the 1st Class is specified, besides the District Magistrate and the Sub-Divisional Magistrate, an affidavit sworn before any First Class Magistrate would be valid, although the particular proceedings in which it is to be used are pending before the Sub-Divisional Magistrate; But on a closer examination of the language employed in section 4 of the Oaths Act, I have reached a different conclusion. As said above, a Court is authorised to administer oath "in discharge of" the duties imposed, or "in exercise of" the powers conferred. This clearly denotes the occasion when a Court is authorised to administer oath. It cannot administer oath, unless it is discharging a duty imposed upon it or is exercising a power conferred upon it. 10. It must, therefore, be held that an affidavit to be put in under section 145, Criminal Procedure Code, must be sworn before the Magistrate who is dealing with the particular case. 11. The view I take was also taken in Wahid v. State AIR 1963 All. 256 , where it was held that an affidavit sworn before an Oaths Commissioner was invalid, and in Hemdan v. State of Rajasthan AIR 1966 Raj. 5 , where an affidavit sworn before a Third Class Magistrate was held invalid. 12. A contrary view has been taken in Ahmad Din v. Abdul Salem AIR 1966 Punj. 256 , where it was held that an affidavit sworn before an Oaths Commissioner was invalid, and in Hemdan v. State of Rajasthan AIR 1966 Raj. 5 , where an affidavit sworn before a Third Class Magistrate was held invalid. 12. A contrary view has been taken in Ahmad Din v. Abdul Salem AIR 1966 Punj. 528, where, dissenting from the above Allahabad and Rajasthan decisions, it has been held that although an affidavit to be used in a proceeding under section 145, Criminal Procedure Code, cannot be sworn before an Oaths Commissioner, yet, by virtue of section 4 of the Oaths Act, every Magistrate, even a Third Class Magistrate, is competent to attest an affidavit or administer an oath to the deponent of an affidavit, not withstanding the fact that the case to which the affidavit relates cannot be tried by such Magistrate himself. The reason advanced in the Punjab case is, to quote the words of the judgment, as follows :-- "The words 'having authority to receive evidence' in clause (a) of section 4 of the Oaths Act do not appear to me to be restricted to the authority of the Court to receive evidence in the particular case, to which the evidence relates, but refers to the jurisdiction and power of the Court to receive evidence in any case which jurisdiction or authority must be conferred on the Court either by law or by consent of the parties. If a third class Magistrate has by law the authority to receive evidence he is competent to administer oaths and affirmations to everyone under section 4 of the Oaths Act." With the greatest respect, I cannot agree with this view because it is not merely the authority to receive evidence which makes a Court competent to administer oath under section 4, but the administration of oath must also be "in discharge of the duties" imposed upon it by law or "in exercise of the powers" conferred upon it by law. It is the impact of these expressions that prevents me from accepting the Punjab view. 13. It is the impact of these expressions that prevents me from accepting the Punjab view. 13. In the Punjab case it is further observed that if witnesses have to appear in the Court itself to get their affidavits attested, the object of receiving evidence by affidavit would be completely flouted and that this would nullify the very object of receiving evidence by affidavits, that is, the witnesses who are out of station, or cannot be conveniently called to Court can give evidence by affidavits. As to this observation, I would say with great respect that, firstly, the entire purpose is not defeated inasmuch as even if witnesses are required to appear in the Court for swearing their affidavits, still the time which would be occupied in recording their evidence is saved. In my opinion, the amendment of sub-section (4) of section 145, Criminal Procedure Code, enabling the parties to put in an affidavit of a witness as a substitute for his evidence, wall aimed at expedition in the disposal of the proceeding and not for obviating the inconvenience to the witness in appearing before the Court. Secondly, if the framers of the law thought otherwise, the purpose could be easily achieved by including section 145 along with other sections specified in section 539-AA, Criminal Procedure Code and thus enable an affidavit to be used under that section to be sworn before any Magistrate. Thirdly, assuming that the view I take would defeat the supposed object of the legislature that witnesses who are out of station or cannot be conveniently called to Court can give evidence by affidavits it cannot be helped. If the provisions of the Code of Criminal Procedure do not apply and we are left only with the provisions of section 4 of the Oaths Act, violence cannot be done to the language of that section in order to achieve the supposed object. 14. The conclusions to which inevitably leads the above discussion are:-- (1) An affidavit of a witness to be put in under sub-section (4) of section 145, Criminal Procedure is a substitute for oral evidence of the witness although the Magistrate may, if he so thinks fit, summon and examine such witness as to the facts contained in his affidavit. 14. The conclusions to which inevitably leads the above discussion are:-- (1) An affidavit of a witness to be put in under sub-section (4) of section 145, Criminal Procedure is a substitute for oral evidence of the witness although the Magistrate may, if he so thinks fit, summon and examine such witness as to the facts contained in his affidavit. (2) The evidence by such an affidavit is, therefore, of a substantial character in contradistinction to the evidence of a formal character within the meaning of section 510-A, Criminal Procedure Code. Therefore, such an affidavit cannot be sworn before "any Magistrate" by virtue of section 539-AA, Criminal Procedure Code. (3) Such an affidavit can be sworn by virtue of section 4 of the Oaths Act, 1873, before the Court which is dealing with the proceedings under section 145, and not before any other Magistrate. 15. In the present case, the final order of the learned Sub-Divisional Magistrate is based on the affidavits put in by party No.1, but those affidavits were invalid as they were not sworn before the competent authority, that is, the Sub-Divisional Magistrate himself. But, since nothing has been placed before me to show that any objection was taken before the Sub• Divisional Magistrate as to the validity of the affidavits, and since party No. 1 might have been advised to get the affidavits of his witnesses sworn before a Magistrate 1st Class under an incorrect reading of section 4 of the Oaths Act, and the Magistrate 1st Class, Sakti, also administered oath to those witnesses, evidently under a mistaken view of the law, for the ends of justice, one more opportunity must be given to party No.1 to file fresh affidavits. 16. The reference is accepted. The order passed by the Sub-Divisional Magistrate is set aside. The case shall go back to that Court for giving a fresh opportunity to party No. 1 to file fresh affidavits and then proceed with the case according to law. It is hardly necessary to point out that the object of section 145, Criminal Procedure Code, is merely to prevent breach of the peace by maintaining one or the other of the parties in possession and not to provide a rough and ready way of redressing a wrong by enabling a Magistrate to exercise, in a summary manner, functions of a civil Court. The Sub-Divisional Magistrate may drop the proceedings at any time; if and when it appears to him that there is no apprehension of the breach of the peace.