Patna High Court
Sheo Kumar Dubey vs Tribhuwan Rai Mukhtear And Anr. on 6 April, 1964
Equivalent citations: AIR1965PAT25, 1965CRILJ69, AIR 1965 PATNA 25, 1964 BLJR 377
JUDGMENT Ramratna Singh, J.
1. The petitioner, who was the second party in a proceeding under Section 145 of the Code of Criminal Procedure, has come up to this court against an order dated the 6th May, 1961, passed by the Subdivisional Magistrate of Buxar. On a police sub-Inspector's report dated the 15th October, 1959, the aforesaid proceeding was started on the 22nd October, 1959, and the parties were directed to file their written statements, affidavits, etc., by the 15th November, 1959. The dispute was in respect of a small piece of land near Sidhnathghat of the river Ganga in the town of Buxar, This land was also attached under Section 145(4) of the Code. There were three claimants of whom one is the petitioner and the other two are the opposite parties in this court. The report of the sub-inspector of police was based on a telephonic message received from the D. I. of Police, Buxar, which disclosed that there was an apprehension of some trouble between two of the parties. Instead of filing written statements or affidavits, the petitioner and one of the opposite parties raised objections regarding the description and identity of the disputed land.
The sub-divisional Magistrate deputed a pleader commissioner and then an amin for fixing the location of the land in dispute, but even then there were objections by the same party. Ultimately, on the 17th February, 1961, a fresh proceeding under Section 145 was started by the subdivisional Magistrate describing the land in dispute as given in the amin's map prepared on the 22nd December, 1960. It will, therefore, be noticed that even the exact identity or the land in dispute remained undetermined for more than a year and one cannot be sure if there was really any apprehension of a breach of the peace in October, 1959. The parties filed their written statements between the 21st March, 1961, and the 1st April, 1961. But none of the three claimants ever cared to file any affidavit. Instead, on the 10th and the 17th April, 1961, the petitioner filed petitions praying for summoning Sri P.C Sen of the Bihar Civil Service then posted at Gaya, Sri Dharnidhar Missir, Deputy Superintendent of police, then residing in mahalla Chiraiyatanr at Patna and Sri Mohammad Ibrahim Hashmi, retired Deputy Superintendent of Police, then residing at his village home in Patna District, on the ground that they were formerly posted at Buxar and they were competent to speak about the possession of the disputed land.
There was an alternative prayer for directing them to swear affidavits to be filed in the proceeding. By the impugned order the learned Magistrate refused both the prayers. The learned advocate for the petitioner did not dispute that portion of the order by which the prayer for directing the aforesaid three gentlemen to swear affidavits was rejected. But he has challenged the other part of the order, namely, the refusal by the Magistrate to summon the three gentlemen as witnesses on behalf of the petitioner.
2. The learned Magistrate was of the opinion that he had no power under Section 145 to summon and examine any person other than one who had sworn an affidavit. He relied on two decisions, namely, Bhagwat Singh v. State, AIR 1959 All 763 and Jodh Singh v. Bhagambar Dass, AIR 1961 Punj 187. Mr. Gorakh Nath Singh, who appeared for the contesting opposite parties, relied on these decisions as well as two other decisions, namely, B.D. Naldu v. Shamsheer Jung Bhadur, AIR 1957 Mys 21 and Keshab Acharya v. Somenath Behera, AIR 1958 Orissa 79. These decisions support the view of the learned Magistrate. On the other hand, Mr. Jagdish Pandey who appeared for the petitioner relied on a decision of the Rajasthan High Court in Bahori v. Ghure, AIR 1960 Raj 15 a decision of the Allahabad High Court in Mirza Mohd. Aziz v. Sardar Hussain, AIR 1962 All 68 and a decision of the Judicial Commissioner of Himachal Pradesh in Kapuru v. Gulaba, 1962(1) Cri LJ 34: (AIR 1962 Him Pra 5).
3. As the Punjab decision, which is the only Bench decision, contains all the arguments in support of the learned Magistrate's view, it will be sufficient to refer to the reasons given therein. Like the Allahabad decision and the decisions of Mysore and Orissa High Courts, the Punjab decision also proceeds on the amendment made In Section 145 by the amending Act of 1955. Sub-section (1) of Section 145, as it stood prior to the amendment, provided that a Magistrate, if satisfied that the dispute was likely to cause a breach of the peace, might issue a notice to the parties concerned to attend his court within a time fixed and "to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute".
By the amendment, however, these words were added:
"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."
By Sub-section (4), as it stood prior to the amendment, the Magistrate was required to "peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively,......take such further evidence (if any) as he thinks necessary, and if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject."
By the amended Sub-section, (4), however, the Magistrate is required to "peruse the statements, documents and affidavits, if any, so put in, hear the parties,......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."
A new proviso was added to Sub-section (4) as follows :
"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."
In the amended Section 146, it Is provided that, in case the Magistrate is unable to decide as to which of the parties was in possession of the subject-matter of dispute, he may draw up a statement of the case and forward the record of the proceeding to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject-matter of dispute at the relevant date. Sub-section (1A) of Section 146 lays down that on receipt of such reference, "the civil court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties decide the question of possession so referred to it".
The learned Judges whose decisions support the view of the Subdivisional Magistrate, were of the opinion that, in order to expedite the disposal of a proceeding under Section 145, the legislature deliberately omitted the earlier provision contained in Sub-section (1) of Section 145 for receiving and taking evidence of witnesses and substituted therefor documents and evidence through affidavits and further laid down that the Magistrate was to only hear the parties after perusing the written statements, documents and affidavits filed by them. Their Lordships thought that the expression "hear the parties" in the sub-section meant only hearing of arguments and it excluded oral evidence. Their Lordships also laid stress on the new proviso added to Sub-section (4), which empowered the Magistrate to summon and examine any person whose affidavit has been put in. They were, therefore, of the opinion that the Magistrate could, if he considered it necessary, examine only the persons whose affidavits had been filed before deciding the matter with reference to the written statements, documents and affidavits and the arguments of the parties. The Orissa and Mysore High Courts did not consider at all Sub-section (9) of Section 145, which reads as follows:
"The Magistrate may, it he thinks fit, at any stage of the proceedings under the section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing".
This sub-section is in the same form since before the amending Act of 1955. The Punjab High Court quoted with approval the following observation of M. C. Desai, J., in AIR 1959 All 763:
"Sub-section (9) does not confer any right upon 8 party to examine a person as its witness; it only lays down the procedure to be followed in procuring the attendance of its witnesses. Whether it has a right to examine a witness or not has to be ascertained from other provisions. All that the sub-section means is that if a party has a light to examine a witness orally, it may obtain from the Magistrate a summons directing him to attend the court. The first proviso to Sub-section (4) is the only provision which confers a right upon a party to examine a witness orally in the court; so Sub-section (9) must be read with the first proviso to Sub-section (4)".
The learned Judges of the Punjab High Court thought that Sub-section (9) appeared to be redundant, at least it was not very apt and it required looking into by the legislature.
4. With the greatest respect, I am unable to agree. There is nothing in the language of the proviso to Sub-section (4) or in that of Sub-section (9) to indicate that the former confers a right upon a party to examine a witness orally. It will be noticed that the expression "if he thinks fit" occurs in both the sub-sections and this expression shows that the discretion lies with the Magistrate. Further, the proviso to Sub-section (4) does not speak of the application of a party, which fact indicates that the Magistrate may examine a person who has sworn an affidavit either of his own motion or at the request of a party; whereas Sub-section (9) enables the Magistrate to summon a witness at the request of a party at any stage of the proceedings-It will also be noticed that the proviso to subsection (4) contains the provision "to summon and examine any person" and, therefore, a separate provision like the one in Sub-section (9) is not required for exercising the power given by the proviso. The view taken in the aforesaid decisions can be justified only if Sub-section (9) is completely ignored. This sub-section was, in its present form, before the legislature, when extensive amendments were made in 1955 in Sections 145 and 146.
The retention of Sub-section (9) in its old form cannot, therefore, be due to mere oversight It is true that the amendments aimed al expeditious disposal of a proceeding under Section 145;
nevertheless, Sub-section (9) was retained The newly added proviso to Sub-section (4) certainly empowers the Magistrate to summon and examine any person whose affidavit has been put in; but at the same time the legislature also empowered die Magistrate, under Sub-section (9), to summon any witness at any stage of the proceeding on the application of either party. Neither in Sub-section (9) nor in the proviso to Sub-section (4) a party has been given any right to examine a witness; in either case the discretion lies with the Magistrate, and he can summon a person under either of these provisions only if he thinks fit to do so.
In my opinion, the legislature deliberately allowed Sub-section (9) to continue for meeting certain contingencies. It may not be possible for a party to obtain the affidavits of some persons either because they do not want to be identified with a party to the dispute or because they are public servants; at the same time such persons may be very competent to speak about possession What remedy has a party in such a contingency. A party may, of course, request the Magistrate to ask such a person to swear an affidavit; but the Magistrate has no power to compel such a person to do so. The only other alternative, therefore, for the party is to request the Magistrate to summon such a person and examine him as a witness; and this can be done only under Sub-section (9). Of course, the Magistrate is not bound to comply with the request of the party; but he has to exercise his discretion judiciously--not arbitrarily For instance, the Magistrate should ordinarily accede to the request of a party to summon and examine a government servant who may be quite competent to speak about the possession of a disputed land.
On the other hand, he may refuse to summon such a witness at the request of a party, who has been negligent or has been adopting a delaying tactics; for instance, when a party requests the Magistrate to summon such a witness under Sub-section (9) without caring to file its written statement, documents and affidavits The ordinary rule of interpretation is that the intention of the legislature has to be gathered from the language used by it; the legislature does not use redundant sentence or word; and effect must be given to the language used in the different provisions of an enactment, unless the effect so given results in an absurdity, or inconsistency. In the instant case, if full effect it given to the language used, there is no conflict between Sub-section (9) and Sub-section (4) read with Sub-section (1) of Section 145. It s true that in Sub-sections (1) and (4) emphasis is laid on documents and affidavits; but there is nothing therein which bars completely the reception of oral evidence.
The expression "hear the parties" cannot always mean only giving audience to the parties or hearing arguments. This meaning was assigned to that expression before the amendment on account of the provision in Sub-section (4) for receiving and taking evidence. The same meaning is assigned to the expression "hearing the parties" in subsection (1A) of amended Section 146 for the same reason. But the mere omission of the provision for taking evidence from amended Sub-section (4) cannot be used for nullifying the effect of sub-section (9). The Court must, in the first instance, try to reconcile the two apparently conflicting provisions. These provisions can, in my opinion, be reconciled without any difficulty, if the expression "hear the parties" is interpreted in its ordinary sense--that is, giving the parties opportunity to adduce evidence and to advance arguments--and by giving full effect to the language of Sub-section (9).
5. The view that I have taken is supported by a decision of Sarjoo Prosad, C.J., in the Rajasthan case, AIR 1960 Raj 15 and the relevant portion is summarised in the placitum as follows:
"The proviso to Sub-section (4) of Section 145 is merely an enabling provision of law which entitles the Magistrate to summon and examine any of the persons whose affidavits have been filed on behalf of the parties, if he so desires in order to decide the question of possession; but the proviso does not preclude the Magistrate from calling as a witness any other person that he thinks proper to examine. Sub-section (9) of Section 145 contemplates such a situation. Sub-section (9) says that the Magistrate may, if he thinks fit, at any stage of the proceedings under the section, on the application of either party, issue summons to any witness directing him to attend or to produce any document or thing. If on the application of either party to the proceedings, the Magistrate can do so, he can do so equally in the ends of justice of his own accord. Indeed Section 540 of the Code empowers the Magistrate like any court to do so"
This Rajasthan decision was followed by the Allahabad High Court in AIR 1962 All 68. The Punjab High Court said that the observations of Sarjoo Prosad, C.J. with regard to Sub-section (9) were mere obiter, inasmuch as the decision was in respect of a witness examined by the Magistrate under Section 540 of the Code of Criminal Procedure. In the Rajasthan case a Patwari, a Government servant, had been examined by the Magistrate under Section 540 of the Criminal Procedure Code, and the learned Chief Justice held that the Magistrate had jurisdiction to examine the patwari under Section 540 in the proceeding under Section 145. In the Allahabad case, one Nawab Ghaznafar Aii Khan was examined under Section 540 by the Magistrate, who considered his statement before passing the final order under Section 145. The learned Sessions Judge, thought that only a witness whose affidavit had been filed earlier in the proceeding under Section 145 could be examined; and) therefore, the learned Magistrate was wrong in examining Nawab Ghaznafar Ali Khan or taking his evidence in con sideration.
A.N. Mulla J., however, disagreed with the learned Sessions Judge and followed the decision of the Rajasthan High Court. I am unable to appreciate the ground on which the Rajasthan decision was distinguished by the Punjab High Court, If Sub-sections (1) and (4) of Section 145, as amended in 1955, bar the examination of any person other than one whose affidavit has been filed, there can be no justification for the view that, though a witness, whose affidavit has not been filed, can be examined under Section 540, he cannot be examined under Sub-section (9) of Section 145. Section 540 reads as follows:
"Any court may, at any stage of any inquiry, trial or other proceeding under this code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.'
6. It will be noticed that like Sub-section (9) of Section 145, this section also does not give any right to a party to examine any person as a witness. In either case, it is the discretion of the court to examine a witness, and if a person can be examined under Section 540 for the just decision of the case, there is no reason why a court cannot examine any person under Sub-section (9) of Section 145, if ft thinks fit to do so.
7. My considered opinion, therefore, is that a Magistrate may, at the request of a party, examine, if he thinks fit a person as a witness under Sub-section (9) of Section 145, even if such a person has not filed an affidavit contemplated by Sub-section (1) of that section.
8. In the result, the impugned order of the learned Magistrate refusing to summon and examine the three Government servants named in the petitions of the petitioner on the ground that they had not sworn any affidavit is set aside. The Magistrate shall consider at the appropriate stage (that is, after the parties have filed their documents and affidavits as required by Sub-section (4)) the said petitions of the petitioner; and, if he finds that the petitioner has made out a case for examination of the aforesaid persons, he should not hesitate, in summoning and examining them under Sub-section (9) of Section 145.
9. S.P. SINGH, J. : I agree, The continued retention of the provision of Sub-section (9) of Section 145 even after the amendment Act 26 of 1955 cannot be supposed to be a mere surplusage. On the other hand, it is a clear indication of the intention of the legislature that the powers of a Magistrate to summon a witness at any stage of the proceeding, on an application of the parties, should remain unaffected. If the intention of the legislature had been that the Magistrate had power to examine those witnesses only whose affidavits had been filed, Sub-section (9) would have been deleted. That having not been done, we have to give this sub-section the natural meaning which it is capable of hearing.
10. There is another reason why Sub-section (9) of Section 145 has been allowed to remain on the statute. There may be cases as in the present case in which one or the other may require the examination of some public servants as witnesses to testify to certain facts. For obvious reasons, such wit nesses may not be prevailed upon by the parties to swear affidavits at their request, but they would not have any hesitation to give evidence in the court if they are summoned by the court concern ed. Such occasions may be rare. All the same, there must be provisions to meet such a contingency; and it was with a view to meeting a situation of this kind that this Sub-section (9) was retained. In the circumstances I respectfully agree with the view expressed in AIR 1960 Raj 15 and also in 1962 (1) Cri LJ 34: (AIR 1962 Him Pra 5).