Mahendra Prasad Sinha v. Bhagirath Lal — 1970 DIGILAW 168 (PAT)

JUDGMENT : B.P. Sinha, J. 1. This revision application is directed against a final ORDER :passed in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter to be referred to as the Code), by which the members of the first party have been declared to be entitled to possession of the disputed property. The disputed land belonged to one Ram Narain Lal. Ram Narain Lal was uncle of the members of the first party who are opposite party here, by agnatic relationship. Petitioner Mahendra Prasad Sinha, second party, is husband of Kawal Kumari alias Kawali, sister of Bhagirath Lal, opposite party no. 1. 2. The case of the first party is that Ram Narain Lal was living joint with them and he died in a state of jointness with them without leaving any issue. Consequently the members of the first party have been coming in possession of the entire disputed land. 3. The case of the second party is that Kawal Kumari had lost her parents in her infancy. Ram Narain Lal, who had no issue brought her up as her own daughter and married her with Mahendra Prasad Sinha, second party. Mahendra Prasad Sinha along with his wife used to live with Ram Narain Lal and used to nurse him during his illness at Patna where he had come for proper medical treatment. Ram Narain Lai, thus being pleased, executed a will in favour of Mahendra Prasad Sinha. Mahendra Prasad Sinha used to look after the properties of Ram Narain Lal during his life time and after his death he came in exclusive possession of the disputed land. He applied for probate of the aforesaid will. After hot contest by the first party, the probate with a copy of the will annexed has been granted to Mahendra Prasad Sinha. 4. One Kamta Nath Singh and two other persons, who are opposite party, intervened in the proceeding claiming the disputed land by virtue of inheritance. 5. The parties filed documents and affidavits in support of their respective claim, on a consideration of which the learned Magistrate found possession over the disputed land with the first party. He made a declaration accordingly, as noted above. Mahendra Prasad Sinha, second party, has therefore filed this revision application. 6. Mr. 5. The parties filed documents and affidavits in support of their respective claim, on a consideration of which the learned Magistrate found possession over the disputed land with the first party. He made a declaration accordingly, as noted above. Mahendra Prasad Sinha, second party, has therefore filed this revision application. 6. Mr. Lal Narain Sinha, appearing for the petitioner, has submitted two points: (i) The learned Magistrate was wrong in accepting the affidavits of the witnesses, which were sworn before Magistrates, who were never in seisin of the case, and as such the ORDER :based upon such affidavits is fit to be set aside. (ii) The learned Magistrate refused to consider some of the documents filed on behalf of the petitioner. 7. In connection with the first point, the learned counsel has submitted that prior to the amendment of Section 145 of the Code in the year 1956, the parties were to adduce oral evidence before the court where case was pending to prove possession, but the amendment has simply introduced a method of proof by affidavits of persons on whom the parties rely in support of their case. He has urged that the evidence has to be given before the Magistrate, who is in seisin of the case and such evidence which prior to the amendment could have been given by examining the witnesses can be given by affidavits sworn by them before that Magistrate. In other words, his submission is that affidavits sworn before any other Magistrate, who was not in seisin of the case at the moment, are not admissible as evidence in the case. On the other hand the contention of Mr. Kailash Roy appearing for the opposite first party is that in absence of any specific provision in the Code in this regard, affidavits attested by any Magistrate, in whom authority to administer oath exists under Section 4 of the Indian Oaths Act (Act No. X of 1873), are admissible in evidence in proceedings under Section 145 of the Code. 8. Kailash Roy appearing for the opposite first party is that in absence of any specific provision in the Code in this regard, affidavits attested by any Magistrate, in whom authority to administer oath exists under Section 4 of the Indian Oaths Act (Act No. X of 1873), are admissible in evidence in proceedings under Section 145 of the Code. 8. The relevant provisions of the Code referred to by the parties are:-- 145(1) 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 a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an ORDER :in writing stating the grounds of his being so satisfied, and requiting the parties concerned in such dispute to attend his court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of suck persons, as they rely upon in support of such claims. (4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the ORDER :before mentioned in such possession of the said subject: Provided 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. X X X 510A. X X X 510A. (1) The evidence of any person whose evidence is of 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 (2) The court may, if it thinks fit, and shall on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit. 539. Affidavits and affirmations to be used before any High Court or any officer of 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 affirmations in Scotland. 539A. (1) When any application is made to any court in the course of any inquiry, trial or other proceeding under this Code, and allegations 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. (2) Affidavits under this section shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief. 539AA. (1) An affidavit to be used before any court other than a High Court under Section 510A or Section 539A may be sworn or affirmed in the manner prescribed in Section 539 or before any Magistrate. (2) The court may ORDER :any scandalous and irrelevant matter in the affidavit to be struck out or amended. Evidence by putting in affidavits in any case before a court other than a High Court is permissible under Sections 74, 145, 510A and 539A of the Code in circumstances mentioned therein. Such provisions in Sections 145, 510A and 539A have been made by Code of Criminal Procedure (Amendment) Act, 1955 (Act XXVI of 1955). Evidence by putting in affidavits in any case before a court other than a High Court is permissible under Sections 74, 145, 510A and 539A of the Code in circumstances mentioned therein. Such provisions in Sections 145, 510A and 539A have been made by Code of Criminal Procedure (Amendment) Act, 1955 (Act XXVI of 1955). There is specific provision in Section 74 itself that affidavit referred to therein can be made before a Magistrate. With regard to affidavits contemplated by Sections 510A and 539A provision has been made in Section 539AA which was also introduced in the Code by the same amending Act (Act XXVI of 1955). That section provides that such affidavits can be sworn in the manner prescribed in Section 539, which relates to affidavits to be used in a High Court, or before any Magistrate, There is no specific provision in the Code in relation to the affidavits which are to be used in proceedings under Section 145 of the Code. Thus the question is where such affidavits can be sworn. 9. In connection with the point involved, in some decisions, which will be referred to hereafter, it has been held that affidavits to be used in proceedings under Section 145 of the Code are of formal nature, as contemplated by Section 510A and as such by virtue of Section 539AA such affidavits can be verified by any Magistrate. I respectfully differ from such views. In a proceeding under Section 145 of the Code, evidence of a witness regarding possession of immovable property cannot be said to be of a formal nature. It is of substantive nature. The Legislature never considered it as of formal nature. Had it been so then-Section 510A itself would have been sufficient to permit such evidence being adduced by putting in affidavits. There would have arisen no necessity to make such a provision in Section 145 itself. While making such provision in Section 145 the Legislature would not have been unmindful of the provisions of Section 510A, which was also being added in the Code at that very time. This strengthens the view that evidence of possession as contemplated by Section 145 of the Code is not of formal nature. Therefore Section 510A cannot be invoked so as to make Section 539AA applicable to such affidavits. 10. This strengthens the view that evidence of possession as contemplated by Section 145 of the Code is not of formal nature. Therefore Section 510A cannot be invoked so as to make Section 539AA applicable to such affidavits. 10. An affidavit is a declaration as to the facts made in writing before a person having authority to administer oath. Section 4 of the Indian Oaths Act runs as follows:-- ........The following courts and persons are authorised to administer, by themselves, or by an officer empowered by them in this behalf, oaths and affirmation 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 the 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 the Government, Provided:-- (1) that the oath of 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. According to this provision all courts and persons having, by law or consent of parties authority to receive evidence are authorised to administer oaths and affirmation in discharge of their duties or in exercise of the powers conferred upon them by law. Thus courts and persons must have authority to receive evidence to enable them to administer oaths and affirmations. But that they can do only while acting in discharge of their duty or in exercise of the powers conferred on them by law. That is to say the authority of the courts or persons authorised to receive evidence, to administer oaths and affirmations is restricted to this extent that it should be in discharge of the duty or in exercise of powers conferred on them by law. A Magistrate must be held to be included in the word "court" as used in the Oath Act having authority to receive evidence. A Magistrate as a criminal court, has a duty to decide a dispute pending before him and as such has authority to receive evidence for that purpose. It is in discharge of such duty that he can administer oaths and affirmations to the witnesses of that case. A Magistrate as a criminal court, has a duty to decide a dispute pending before him and as such has authority to receive evidence for that purpose. It is in discharge of such duty that he can administer oaths and affirmations to the witnesses of that case. Therefore the Magistrate before whom the proceedings under Section 145 of the Code was pending was competent to attest the affidavits of the witnesses of the proceedings. Question is if other Magistrates can do so. A question arises if the words "having authority to receive evidence" in Clause (a) of Section 4 of the Indian Oaths Act refer to the jurisdiction and power to receive evidence in any case and not necessarily the case to which the affidavit relates. There are conflicting decisions on this point. In (1) Ahmad Din V. Abdul Salam (A.I.R. 1966 Pun 528) the view expressed in that "having authority to receive evidence" refers to jurisdiction and power to receive evidence in any case. A contrary view appears to have been taken in (2) Hemdam V. State of Rajasthan (A.I.R. 1966 Raj 5) and Nandlal Ghose V. Emperor (A.I.R. 1944 Cal 283). The authority to receive evidence must be by law or by consent of parties. The words "by consent of the parties" is indicative of the fact that consent must be of the parties to the litigation concerned. Consent of parties to any other litigation conferring authority to receive evidence could not have been contemplated as giving jurisdiction and power to verify oath, to be used in another case with which those parties have no concern. There "having authority to receive evidence" must be referring to evidence in the case in relation to which affidavit is sworn. Assuming that Section 4 of the Oaths Act is not restricted to the authority of the court to receive evidence in the particular case to which the evidence relates, the matter does not end there. Further condition is that the court though competent to receive evidence must be acting in discharge of its duty or in exercise of the power conferred on it by law. A Magistrate who is not in seisin of the proceedings cannot be said to be acting in discharge of his duty while administering oaths and affirmations to the witnesses of that proceedings. A Magistrate who is not in seisin of the proceedings cannot be said to be acting in discharge of his duty while administering oaths and affirmations to the witnesses of that proceedings. It is no part of his duty to administer oaths to witnesses of a proceedings with which he has no concern. Therefore such a Magistrate is not authorised to administer oaths either by himself or by an officer empowered by him unless it be shown that he was acting in exercise of power conferred on him by law. Ordinary and special powers of Magistrate are enumerated in Schedules III & IV of the Code. It cannot be said that administration of oaths to witnesses to proceedings in another court is in exercise of any of those powers. There is nothing to show that the Magistrates, who have verified the affidavits of the instant case were conferred with any power by law to administer, by themselves or by an officer empowered by them, oaths and affirmations in relation to the affidavits which are meant for use in proceeding under Section 145 of the Code and that they were acting in exercise of such power while attesting those affidavits. Therefore, it follows that the affidavits which have been sworn before the Magistrates, who were not in seisin of the case, are not affidavits verified under Section 4 of the Indian Oaths Act and cannot be used as evidence in the proceedings under Section 145 of the Code. 11. Assuming that the affidavits of the instant case were properly verified under Section 4 of the Indian Oaths Act,, still the question remains if those affidavits which were attested by Magistrates who were not in seisin of the case at the moment could be taken in evidence in the proceedings. Section 145(1) of the Code provides that parties are required to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon. It indicates that parties are required to adduce evidence of such persons on whom they rely, but that may be by putting in affidavits instead of examining them orally. That is to say, the affidavits, which are put in, only take the place of oral examination. But the fact remains that it is the evidence of the witnesses which has to be adduced in the case. That is to say, the affidavits, which are put in, only take the place of oral examination. But the fact remains that it is the evidence of the witnesses which has to be adduced in the case. That evidence may be given by the witnesses in the court by making oral statement or by making declaration in writing on oath, that is to say, by swearing affidavits. It is the court where the case is pending that can take evidence. If an affidavit is sworn before another Magistrate, that would mean that such Magistrate has taken the evidence of the deponent for the case which is pending somewhere else. This is hardly permissible unless there be specific provision of law to that effect. It follows that the swearing of the affidavit by way of evidence has to be in the court which is in seisin of the case unless otherwise provided by law. Similar language finds place in Section 510A of the Code. That Section provides that evidence of any person whose evidence is of a formal character may be given by affidavit and may be read in evidence in any inquiry, trial or other proceedings under the Code. Had this provision remained alone, the result might have been that the affidavits relating to evidence of a formal character also necessarily would have to be sworn before the court where the case be pending. So would have been the case with regard to affidavits contemplated by Section 539A of the Code. To make affidavits verified by any Magistrate, irrespective of whether the case is before him or not admissible in evidence specific provision was found necessary. Hence such provision has been made in Section 539AA. If the contention of the learned counsel for the opposite party that simply by virtue of Section 4 of the Indian Oaths Act the affidavit of the witness to be used as evidence in a case can be sworn before any other Magistrate be correct then where was the necessity for making a provision in Section 539AA that in affidavit contemplated by Section 510A or 539A can be sworn before any Magistrate. The language of the relevant portion of Section 145(1) being more or less similar to that of Sections 510A and 539A, omission of any reference to Section 145 in Section 539AA of the Code is significant. The language of the relevant portion of Section 145(1) being more or less similar to that of Sections 510A and 539A, omission of any reference to Section 145 in Section 539AA of the Code is significant. Verification of affidavits contemplated by Section 145 by any Magistrate other than the Magistrate before whom the case is pending has not been provided anywhere in law. 12. Thus from all consideration it follows that affidavits of witnesses meant for use under Section 145 of the Code have to be sworn before the Magistrate before whom the proceedings be pending. 13. The aforesaid view gets support from certain decisions referred to by the learned counsel for the petitioner. The first case that has been relied upon is a decision in (3) Wahid and another V. State (A.I.R. 1963 All 256). It was held therein:-- The Magistrate before whom the proceedings were pending had a duty to decide the dispute between the parties with regard to the possession of the enclosure and it cannot be doubted for a moment that for the proper, discharge of his duty the Magistrate had an authority to receive evidence in the proceedings. He was, therefore, a person authorised to administer oath either by himself or by an official empowered by him in this behalf. The affidavits that were to be filed in the proceedings could, therefore, be sworn by the Magistrate before whom the proceedings were pending decision. ....The affidavits put in by the second party were sworn before another Magistrate. That Magistrate had no concern with these proceedings. The affidavits put in by the second party were not proper affidavits and could not be taken into evidence.... Another case that has been referred to is a decision in (4) Govind V. State and others (A.I.R. 1969 All 405). But the point in issue has not been specifically considered in, that decision. There the question was whether the affidavit verified by Oath Commissioner could be read in evidence in proceedings under Section 145 of the Code where evidence by affidavit is permissible. The answer was in the negative. The point whether an affidavit sworn before any other Magistrate can be read as evidence in such proceedings was not mooted 14. The aforesaid decision of the Allahabad High Court reported in (3) (A.I.R. 1963 All. The answer was in the negative. The point whether an affidavit sworn before any other Magistrate can be read as evidence in such proceedings was not mooted 14. The aforesaid decision of the Allahabad High Court reported in (3) (A.I.R. 1963 All. 256) has been relied on in the case of (2) Hemdan V. State of Rajasthan and others (A.I.R. 1966 Raj 5). The view expressed in the Allahabad case was quoted with approval and it was held:-- ....It was the Sub-divisional Magistrate before whom the proceedings were pending, who had a duty to decide the dispute and to receive evidence in the proceedings. The affidavits could therefore, be sworn by him or by an officer empowered by him in this behalf and not by any other Magistrate.... 15. On the other hand the counsel for the opposite party has referred to a decision in (1) Ahmad Din V. Abdul Salam (A.I.R. 1966 Pun 528). That was a case where the question had arisen whether the affidavits sworn by witnesses to the proceeding under Section 145 of the Code before a Commissioner for Oaths appointed under Section 139(b) of the Code of Civil Procedure could be received as evidence by the Magistrate in whose court the proceeding under Section 145 of the Code was pending. It was held that the Oaths Commissioner did not fall within any of the categories of the courts or persons mentioned in Section 4 of the Indian Oaths Act. Though the question as to whether an affidavit sworn before another Magistrate could be read as evidence in a proceeding under Section 145 of the Code did not arise, in that case observations have been made which support the contention of the learned counsel for the opposite party. They are:-- Mr. Bipen Bihari Lal, the learned Advocate for the petitioner who has appeared to support the recommendation of the learned Additional Sessions Judge, has invited my attention to the JUDGMENT : of the Allahabad High Court in (3) Wahid V. State, A.I.R. 1963 All. 256, wherein it was held that an affidavit under Section 145 of the Code of Criminal Procedure cannot be sworn or affirmed before a Commissioner or Oath Officer appointed by the High Court. I am in full agreement with the JUDGMENT : of the Allahabad High Court to that extent. 256, wherein it was held that an affidavit under Section 145 of the Code of Criminal Procedure cannot be sworn or affirmed before a Commissioner or Oath Officer appointed by the High Court. I am in full agreement with the JUDGMENT : of the Allahabad High Court to that extent. Kailash Prasad, J., however, further proceeded to hold that affidavits which have to be filed in proceedings under Section 145 can be sworn by the Magistrate before whom the proceedings are pending decision. This is no doubt true. But this does not debar any other competent Magistrate from allowing an affidavit sworn before him. Indeed the Rajasthan High Court has gone to the length of holding in (2) Hemdan V. State of Rajasthan, A.I.R. 1966 Raj. 5, that affidavits for proceedings under Section 145 of the Code of Criminal Procedure cannot be sworn even before a Third Class Magistrate because, such a Magistrate has no authority to himself receive evidence in a case under Section 145 of the Code of Criminal Procedure. With great respect to the learned Judge who decided 'Hemdan's case, A.I.R. 1966 Raj. 5, I do not think that, a Third Class Magistrate who is the proper authority under Section 4 of the Oaths Act is not entitled to attest any affidavit or to administer an oath to the deponent of an affidavit merely because the case to which the affidavit relates cannot be tried by such Magistrate himself. Such an interpretation appears to me to nullify the very object of receiving evidence oft affidavits. The witnesses who are out of station or cannot be conveniently called to a court can give evidence on affidavits. If such witnesses have to appear in the court itself to get their affidavits attested the object of receiving evidence on affidavits would be completely flouted. 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. It would appear that the reason given in support of the view held is that if the witnesses have to appear in the court itself to get their affidavits attested the object of receiving evidence on affidavits would be completely flouted. The object of permitting evidence by affidavit is to save time and not to exempt appearance of the witnesses. Oral examination of the witnesses used to consume much time of the Magistrate. That time is considerably saved when the Magistrate has to attest the affidavits by administering oath either by himself or by any person authorised by him. Time is not/necessarily saved only by avoiding the attendance of the witnesses. Though "having authority to receive evidence" has been interpreted as not restricted to the authority to receive evidence in the particular case to which the evidence relates, there has been no consideration of the second condition for application of Section 4 of the Indian Oath Act that administration of oath should be in discharge of duty or in exercise of power conferred by law. 16. Another case referred to by the learned counsel for the opposite party is a decision in (5) Leitanthem Bindhu Singh and others V. Khangirakpam Ibobi Singh and others (A.I.R. 1969 Man 3). With an observation that the affidavits are allowed to be put in to avoid undue delay in the disposal of the matter which should be done as far as practicable within two months from the date of the appearance of the parties an on interpretation of Section 4 of the Indian Oaths Act it was decided that an affidavit filed in the proceedings under Section 145 of the Code can be sworn before any magistrate who is competent to take evidence. It has further been observed that the affidavits contemplated by Section 145(4) of the Code are of formal nature so as to invoke the application of Section 510A and 539AA of the Code. On that basis it has been held that affidavits sworn before any other magistrate can be received as evidence in a proceeding under Section 145 of the Code. On that basis it has been held that affidavits sworn before any other magistrate can be received as evidence in a proceeding under Section 145 of the Code. I cannot persuade myself to agree with the view that the affidavits of witnesses regarding possession as required under Section 145 of the Code are of formal nature. As already indicated above, such affidavits are of substantive nature and as such question of application of Section 510A and consequently of Section 539 AA does not arise. The delay which was sought to be avoided was the time which used to be consumed in examining and cross-examining the witnesses and not necessarily only the time required for securing the attendance of witnesses. 17. There is another decision of Delhi High Court in (6) Shambhu Nath Chopra V. State (A.I.R. 1970 Delhi 210) in which the same view has been taken. The reasons given are that the evidence of possession by affidavit is of formal character as contemplated by Section 510A and that the evidence by affidavit has been allowed to secure speedy disposal of the case. The reasons do not appear to be sound as noted above. 18. Mr. Kailash Roy has submitted that if the contention of the learned counsel for the petitioner be accepted then that would mean that the affidavits sworn before a magistrate, before whom the proceeding is pending will cease to be evidence after the transfer of the case to another magistrate. There is no force in this contention. If the affidavit sworn before a Magistrate in seisin of the case is filed, it becomes evidence and will continue to be evidence even after the transfer of the case as happens in the case where evidence is given by examining the witnesses and not by putting in affidavits. 19. Therefore, the affidavits, which were verified by a Magistrate, who was not in seisin of the proceeding at the time the affidavits were sworn, were not admissible and they should not have been read as evidence in the instant proceedings. 20. Now the petitioner has stated in the supplementary affidavit that all the affidavits used as evidence in this case by the parties were sworn before Magistrates other than the Magistrate before whom, the proceeding was going on. In reply a vague statement is made that the statement in supplementary affidavit is only partly true. 20. Now the petitioner has stated in the supplementary affidavit that all the affidavits used as evidence in this case by the parties were sworn before Magistrates other than the Magistrate before whom, the proceeding was going on. In reply a vague statement is made that the statement in supplementary affidavit is only partly true. The learned counsel for the opposite party did not point out if any of the affidavits relied was verified by the Magistrate before whom proceeding was going on. If the affidavits are excluded very little material is left to sustain the ORDER :. 21. In connection with the second point, the learned counsel could not specifically point out as to which relevant document the court refused to consider. Therefore, this contention is baseless. The result is that the revision application is allowed and the ORDER :of the learned magistrate is set-aside. The case is remanded for fresh decision according to law. The court below will give opportunity to the parties to put in proper affidavits of witnesses on whom they rely.