DAY RAM v. STATE OF RAJASTHAN — 1987 DIGILAW 167 (RAJ)

Judgment J. R. CHOPRA. J. ( 1 ) THE petition is directed against the Judgment of the learned Addi. Sessions Judge, Bhilwara dated 13-3-1980 whereby he has affirmed the orders of the learned S. D. M. Gulabpura dated 2-12-1978 and 29-12-1978 by which the learned S. D. M. has held that on the date when the preliminary order was passed i. e. on 7-9-1977 and two months prior to it, non-petitioner No. 1 was in possession of Khasra Nos. 646 and 647 in village Gainpura. The petitioner was restrained from interfering with the possession of the non-petitioner. ( 2 ) THE facts necessary to be noticed for the disposal of this application (petition) are that the Khasra Nos. 646 and 647 are situated in village Gainpura. There was a dispute between the petitioner and non-petitioners about the possession over this land. The S. H. O. , Shambhugarh reported to the S. D. M. , Gulabpura that two partys claimed possession over this land and a breach of peace is likely to occur. He, therefore, filed complaint under section 145 Cr. P. C. requesting the learned S. D. M. to attach this land. The learned S. D. M. drew a preliminary order on 7-9-1971 holding that he is convinced that a dispute exists between the parties regarding the possession over the disputed land and it is likely to cause breach of peace. He, therefore, issued a notice under section 145 (1) Cr. P. C. to both the parties to produce their evidence and affidavits in support of their claims. Actually, through a notice under section 145 (1) Cr. P. C. , the parties should have been called upon to file their claims as regards the possession. That notice has not been issued for calling upon the parties to lead their evidence. Be that as it may, the parties have filed their claims and, therefore, that opportunity need not be afforded afresh. ( 3 ) MR. T. S. Champawat, learned counsel for the petitioner has submitted that no opportunity was provided to the petitioner to lead evidence. He has further submitted the affidavits filed in this connection cannot b. considered. On the other hand, Mr. A. L. Mehta, learned counsel for the non-petitioners has submitted that the parties have been afforded an opportunity to lead their evidence but they filled to do so. He has further submitted the affidavits filed in this connection cannot b. considered. On the other hand, Mr. A. L. Mehta, learned counsel for the non-petitioners has submitted that the parties have been afforded an opportunity to lead their evidence but they filled to do so. They only preferred to file the affidavits and that was enough. According to him, the parties were afforded an opportunity of hearing and after hearing the parties, the learned S. D. M. has decided this matter. ( 4 ) I have considered the rival submissions made at the bar. Actually, according to the scheme of the amended Code of Criminal Procedure, the parties should have filed their claims and the documentary evidence if any in their possession. If they filed affidavits in support of their claims or written statements, that is their sweet choice but in pursuance of the notice under section 145 Cr. P. C. , they have to file their written statements or claim as the case may be. Section 145 (4) Cr. P. C. provides that the Magistrate shall without reference to the merit or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties receive all such evidence as may be produced by them, take such further evidence, if any as be thinks necessary. Reading together the provisions contained in Section 145 (4) and in Section 274 Cr. P. C. , it clearly transpires that the legislature intended that evidence has to be recorded in such proceedings as is done in case of summons cases. The affidavits cannot be considered because when the statements are recorded, an opportunity of cross-examination has to be afforded, which cannot be done when the affidavits are filed. ( 5 ) MR. T. S. Champawat, learned counsel for the petitioner has drawn my attention to a decision of the Calcutta High Court in Abhimanyu Kumar v. Nanak Ram and others1, wherein it has, been held that evidence in proceedings under section 145 (1) and (4) Cr. P. C. is to be by examining witnesses and not by putting affidavits. The learned Judge has gone to the extent, of saying that the affidavits sworn by witnesses in support of ones own claims and annexed as a part of the written statement cannot be looked into by the learned Magistrate. P. C. is to be by examining witnesses and not by putting affidavits. The learned Judge has gone to the extent, of saying that the affidavits sworn by witnesses in support of ones own claims and annexed as a part of the written statement cannot be looked into by the learned Magistrate. It has further been held that as per section 145 (4) Cr. P. C. , though the choice is left on the parties to adduce evidence yet reasonable opportunity has to be given to them to produce their witnesses and documents if any. In Smt. Flori Rodriques v. M. J. Danial Cabral2, it has been observed as under: Under the new Code, a Magistrate cannot dispose of proceeding under section 145 on the basis of affidavits. It is clear from reading both the provisions of sub-sections (1) and (4) of section 145 of the New Code, that the Legislature has deliberately done away with the amendment concerning the affidavits which was made by section 18 (a) and (b) of the Criminal Procedure Amendment Act 26 of 1955, thereby dispensing with the affidavits altogether and restoring the provisions to the position which existed prior to the amendment of the Code by Act 26 of 1955. Not only that but the Legislature has specifically provided in sub-section (4) of section 145 of the new Code that the Court shall receive all such evidence as may be produced by the parties and take such further evidence if any as it thinks necessary. My attention was also drawn by Mr. Mehta to a decision of this Court in Bhagwat Singh v. Umed Singh3, wherein K. D. Sharma, J. (as he then was) has held that the affidavits filed by the parties should be looked into. That case related to the year 1973 when the old Cr. P. C. was in force and, therefore, that decision is applicable to the proceedings that have been initiated before the amendment in the Cr. P. C. and not thereafter. In this case, the learned S. D. M. has decided the case on the basis of the affidavits which was not proper. The learned Addi. Sessions Judge, Bhilwara has also not taken into consideration this change made in the law and, therefore, the orders dated 2-12-1978 and 29-12-1978 of the learned S. D. M. , Gulabpura cannot be sustained. In this case, the learned S. D. M. has decided the case on the basis of the affidavits which was not proper. The learned Addi. Sessions Judge, Bhilwara has also not taken into consideration this change made in the law and, therefore, the orders dated 2-12-1978 and 29-12-1978 of the learned S. D. M. , Gulabpura cannot be sustained. ( 6 ) IN the result, this petition is allowed and the orders dated 2-12-1978 and 29-12-1978 of the learned S. D. M. Gulabpura and the order dated 13-3-1980 passed by the learned Addi. Sessions Judge, Bhilwara are set aside. The case is sent back to the learned S. D. M. , Gulabpura to decide the case afresh in the light of the observations made hereinabove. The written statement and the claims of the parties are already on record. An opportunity should be provided to both the parties to lead their evidence as provided by section 145 read with section 274 Cr. P. C. It is, however, ordered that till the disposal of these proceedings, status quo as it exists today shall be maintained. The parties are directed to appear before the learned S. D. M. Gulabpura on 2-4-1987. Let the record of this case be sent to the learned S. D. M. , Gulabpura immediately.