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Gauhati High Court · body

1970 DIGILAW 43 (GAU)

ABDUL GAFFUR v. SOMRAM HAZARIKA

1970-06-10

BAHARUL ISLAM

body1970
ORDER This application under Section 439 of the Code of Criminal Procedure has been filed on behalf of the second party in a case under Section 145, Criminal Procedure Code and is directed against an order dated 29-7-69 passed by the learned Additional District Magistrate (Judicial), Tezpur, in Misc. Case No. 356 of 1968. 2. The learned Magistrate declared possession of the disputed land in favour of the first party. The disputed land involves an area of about 6000 bighas. The first party in support of his claim filed seven affidavits and a proceeding book of a society in support of their claim. The second party filed 11 affidavits, 13 revenue receipts, a copy of the recommendation of the Assistant Settlement Officer, Naduar, reconsidering the land for settlement in favour of the second party. The learned Magistrate while considering the 11 affidavits filed on behalf of the second party, rejected 8 affidavits on the ground that they were sworn before a Third Class Magistrate. He dismissed the other three affidavits also on the ground that they were sworn by persons who were not made parties to the proceedings. Mr. S. N. Bhuyan, appearing on behalf of the second party-petitioners submitted that the order of the learned Magistrate rejecting the 8 affidavits on the ground that they were sworn before a Third Class Magistrate is absolutely wrong. 3. The relevant portion of Section 145, Criminal Procedure Code is in the following terms : "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 requiring 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 such persons, as they rely upon in support of such claims. x x x x x (4) The Magistrate shall then, without reference to then 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 decide the question weather 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 x x". Sub-sections (1) and (4) of Section 145, Criminal Procedure Code provide for putting in affidavits by way of evidence. The object was expeditious disposal of matters under Section 145, Cr.P.C. the primary object of the provision being prevention of breach of peace. This section nowhere says that the affidavits must be sworn before the Magistrate before whom the proceeding is pending or before any First Class Magistrate. The section only provides for putting in affidavits, Section 4 of the Oaths Act provides 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 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; .......". It is, therefore, clear that the affidavits sworn before any court as envisaged in Section 4 of Oaths Act is admissible under sub-section (1) and (4) of Section 145, Criminal Procedure Code. 4. Mr. Bhuyan in support of his contention relies on two decisions reported in AIR 1966 Punj 528 (Ahmad Din v. Abdul Salem) and 1971 Assam LR 384 = (1972 Cri.L.J. 172) (Samauddin Sekh v. Abinas Chandra Sharma). In the first case it is held "It is true for proceedings under Section 145 of the Criminal Procedure Code no particular authority, person or court is specified by the Code to be competent to get an affidavit sworn or attested. In the first case it is held "It is true for proceedings under Section 145 of the Criminal Procedure Code no particular authority, person or court is specified by the Code to be competent to get an affidavit sworn or attested. But the result of this situation is that an affidavit in order to be good evidence in a proceeding under Section 145 of the Criminal Procedure Code no particular authority, person or court is specified by the Code to be competent to get an affidavit sworn or attested. But the result of this situation is that an affidavit in order to be good evidence in a proceeding under S. 145 has to be sworn before an authority which is otherwise competent under some law to administer oath. The court of every Magistrate or other judicial officer who is entitled to receive evidence is such a competent authority under S. 4 of the Oaths Act." In the second case, the Hon'ble Chief Justice has held, "Any affidavit that is sworn before a competent person can be filed as evidence in the case while a Magistrate makes an enquiry under Section 145(4) of the Code of Criminal Procedure ...... A new procedure has been laid down and there is no bar in law debarring the parties from submitting affidavits which may be very conveniently sworn before any other competent Magistrate." I respectfully agree with this view. 5. A contrary view has been taken by the Rajasthan High Court in the case of Hemdan v. State of Rajasthan, AIR 1966 Raj 5 wherein it was held - "It will, therefore, have to be taken that the Code does not provide any method of swearing affidavits to be used in proceedings under Section 145 of the Code. Obviously, Sections 539 and 539-A do not apply. Section 539 relates to affidavits and affirmations to be used before any High Court or any officer of such court. Section 539-A deals with affidavits filed in the course of enquiry, trial or other proceedings under the Code relating to the conduct of any public servant. Section 510-A applies where evidence is of a formal character. But evidence to be adduced in proceedings under Section 145 regarding possession of immovable property cannot be said to be of formal character. Section 539-A deals with affidavits filed in the course of enquiry, trial or other proceedings under the Code relating to the conduct of any public servant. Section 510-A applies where evidence is of a formal character. But evidence to be adduced in proceedings under Section 145 regarding possession of immovable property cannot be said to be of formal character. On the other hand the evidence is of a substantive nature and thus to my mind Section 510-A cannot be invoked so as to make Section 539-A applicable in the case of affidavits filed in proceedings under Section 145." 6. I regret to differ from this view. Sub-sections (1) and (4) of Section 145, Criminal Procedure Code while providing for putting in evidence by affidavits also provide 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. If any of the affidavits sworn by the eight persons before a Third Class Magistrate were sought to be tested, the Magistrate could summon any or all of those eight persons for further examination as provided by the first proviso to sub-section (4) of Section 145. This is compatible with the purpose of the 1955 amendment of the Criminal Procedure Code, which provided for speedy disposal of Criminal matters particularly proceedings under Section 145 Criminal Procedure Code. Therefore, the learned Magistrate was not justified in rejecting the 8 affidavits filed on behalf of the second party. The learned Magistrate was also not justified in rejecting the other three affidavits on the ground that they were sworn by persons who were not parties to the proceedings. They were witnesses. 7. There is, however, another important factor in the present case. The learned Magistrate has considered other material documents before him. He has considered the 13 revenue receipts filed on behalf of the second party. He has found that the second party has paid a revenue of Rs. 2.75 p. and the local rate of 25 p. for two years for the disputed area of 6 bighas of land. He also finds that the other receipts also do not support the claim of the second party. He has found that the second party has paid a revenue of Rs. 2.75 p. and the local rate of 25 p. for two years for the disputed area of 6 bighas of land. He also finds that the other receipts also do not support the claim of the second party. He has also considered the documents filed by the second party, namely, letter No. 4074 dated 10-10-68 issued by the Assistant Settlement Officer Naduar Circle, recommending settlement of 250/300 bighas of land to 2nd party. The boundary of the land is described as follows :- "North - Brahmaputra, Goaguri village. East - Nabajoria farm land. South - Land under occupation by people of Biswanath. West - Land occupied by people of Garahabi villagers." But the land in dispute, which was attached in this case, is as follows :- "North - Brahmaputra River. East - Nabajoria farm land. South - Brahmaputra River. West - Lalchand Mandol." The learned Magistrate on perusal of the above description of the land claimed by the second party and the land of the proceedings finds that the lands are not identical. He has, therefore, found that the first party is in possession of the disputed land and he has ordered them to remain in possession till the order is set aside by a competent court. In the result, the application fails and is accordingly rejected. The Rule is discharged. Revision dismissed.