Rattan Lal vs Maheshwar Singh

G.D. Sharma, J.—This revision petition is directed against the order dated 2531997 passed by the learned Sub Registrar, Judicial

Magistrate 1st class, Jammu whereby he has allowed the production of the duplicate affidavits (the originals whereof stood already produced on

the record). The production was allowed at the final stage of the case when the case was posted for hearing the arguments. The order was

challenged by filing revision petition before the learned Sessions Judge, Jammu who transferred the same for adjudication to the learned 1st Addl

Sessions Judge, Jammu who vide his order dated 2141997 concurred with the findings of the trial court and held that there was no illegality in the

order and that the trial Magistrate had ample powers to cause production of these duplicate affidavits under subclause(9) of Section 145 Cr. P. C.

These orders have been challenged herein on the ground that they go against the ratio of the judgement of this court which was given in the case

of Bashir Ahmed Bhat Vs. Gh. Qadir Mir(1980 KLJ 16).

Heard the arguments.

Mr. Saini has contended that the Magistrate had no power to fill up the lacuna left by the respondent and by the illegal exercise of this power his

right to get the petition dismissed has been scuttled. In support of his contention he has cited the case of Bashir Ahmed (supra). It is also

contended that subclause(9) of Section 145 Cr. P. C. does not invest the Magistrate with any power to take away a legal right of a party which

under law has vested in him. It is also pleaded that it is not an interlocutory order as it has been passed in abuse of the legal power and established

law and that it has scuttled the legal right of a party. To buttress his contention, the learned counsel has cited the case of Amar Nath Vs. State of

Haryana and others (AIR 1977 SC 2185). The ration of this judgement is that where the law is abused then that is not interlocutory order.

These arguments have been controverted by the opposite counsel by stating that the Magistrate had taken the cognizance of the proceedings

whose primary duty was to potect the breach of peace. He was satisfied about the breach of peace existing on the spot, so the preliminary order

was passed. That the original affidavits were got attested by oversight from an Oath Commissioner and when during the course of arguments this

defect was detected the duplicate thereof duly attested by the Magistrate were produced.

Under subclause (9) of Section 145 Cr. P. C. the Magistrate had the power to call any witness or get any document produced byway of

evidence and in that manner these affidavits were taken on record. In support of his contention he has cited

AIR 1968 Raj 324

AIR 1966 Raj 5

AIR 1969 AN 405

AIR1967 Manipur 23

In AIR 1977 SC 2185 (supra) it has been held that the inherent powers of the court can ordinarily be exercised when there is no express

provision on the subject matter. Where there is an express provision, barring a particular remedy, the court cannot resort to the exercise of inherent

powers. In AIR 1978 SC 47 (supra) it has been reiterated that the inherent power should not be exercised as against the express bar of law

engrafted in any other provision of the Code.

In AIR 1969 AIL 405, it has been held that if the evidence is of formal character, the affidavit verified by Oath Commissioner is admissible in

evidence and in case the evidence is not of formal character affidavits have to be verified by the Magistrate himself.

In AIR 1966 Raj 5, it was held that the affidavits could not be sworn before the 3rd class Magistrate who had no authority to receive evidence

in such case. In the case of Bashir Ahmed Bhat and Ann vs Ghulam Qadir Mir and others (supra) it has been held that affidavits filed during the

proceedings held under Section 145 Cr. P. C. must be sworn before any court and the affidavits worn before an Oath Commissioner are

inadmissible in evidence.

In AIR 1968 324, it is held that subsections (4) & (9) of Section 145 Cr. P. C. are distinct.

In AIR 1967 Manipur 23, it has been held that a Magistrate can admit an affidavit filed at a late stage of the inquiry.

Now adverting to the facts of the present case, it has to be seen whether the Magistrate has acted illegally or legally when he accpeted the

duplicates of the already filed affidavits before him which were duly sworn in before a Magistrate. The legislature has enacted section 145 Cr. P.

C. to prevent imminent breach of peace concerning any land or water or the boundaries thereof, within the local limits of the jurisdiction of the

concerned competent Magistrate. Summary procedure has been provided to find the factum of possession and dispossession within the prescribed

period and under subclause(9) the Magistrate on the application being made to him by either party if thinks fit at any stage of the proceedings can

issue a summons to any witness directing him to attend or to produce any document or thing. This power has been given to the Magistrate to arrive

at the just conclusion of the dispute and in the present case he has allowed the production of the duplicate affidavits. There is no bar created in law

for the production of a document after a particular stage or period of time. By the production of legally sworn affidavits a procedural illegality

committed has been recitifed. The Magistrate has exercised his discretion in a judicial manner and it cannot be said that a legal right which had

accrued has been scuttled. Viewing the case in this manner it is held that no illegality is found to have been committed in a perverse manner which

warrants interference by invoking the revisional jurisdiction. Hence, there is found no merit in this revision petition which is dismissed. The office

shall return the record and the trial Magistrate shall proceed ahead in the case in accordance with law.