Ram Khelawan Bhagwati vs Sunder Nankau And Anr. on 24 September, 1968
This view was also followed by the Division Bench in the case of Section Jodh Singh V. Mahant Bhagambar Das, AIR 1961 Punj 187.
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1 - 9 of 9 (0.41 seconds)Laiphrakpam Leiren Singh And Ors. vs Nongthombom Leiren Singh And Ors. on 9 December, 1966
The Punjab High Court also holds the same view, as can be seen from Jodh Singh v. Bhagambar Das AIR 1961 Punj 187.
Sheo Kumar Dubey vs Tribhuwan Rai Mukhtear And Anr. on 6 April, 1964
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.
Mst. Bhagwani vs Harlal And Ors. on 10 April, 1968
6. There are two sets of opinion in regard to this interpretation of Sub-sections (4) and (9) of Section 145, Cr. P. C. One view is contained in Keshab Acharya v. Somenath Bahera, AIR 1958 Orissa 79, Bhagwat Singh v. State, AIR 1959 All 763, S. Jodh Singh v. Mahant Bhagambar Das, AIR 1961 Punj 187, and Ravenna v. Nara-yana Murthy, AIR 1957 Mys 43. In these decisions, it has been held that Sub-section (9) of Section 145, Cr. P. C., is subject to Sub-section (4) of that section. According to this view under Sub-section (9), a Magistrate can summon only those witnesses who have filed affidavits. Reasons given in the above quoted authorities are two-fold The first reason is that subsection (9) is more or less redundant when there is definite provision in Sub-section (4) of Section 145, Cr. P. C. The second reasoning is that the very object of amending Section 145, by Act No. 26 of 1955, would be defeated if witnesses are to be orally examined by the parties in accordance with Sub-section (9) of Section 145, Cr. P. C The object of the amendment was to shorten the proceedings under Section 145, Cr. P. C. If the view that a party had a right under Section 145, Cr. P. C. to apply for summoning witnesses, whose affidavits were not filed or accepted, the very purport of the amendment would be nullified and the procedure, instead of being shortened, would become doubly cumbersome.
Hari Charan Deb Barma vs Hriday Ranjan Ghosh on 27 February, 1970
4. The criticism levelled against the second view is that it is in conflict with the aims of the amendments made to Section 145 in the year 1955, the avowed object of which was to shorten the proceedings and to conclude the inquiry at the earliest. If the view that a party has a right under Sub-section (9) to move the Magistrate for summoning a witness who had not filed an affidavit is accepted, the critics of this view point out, the very object of the amendments introduced in 1955 would be nullified and the procedure would become doubly cumbersome instead of being shortened. In my opinion, this criticism is not justified and I say so with all respects to the High Courts subscribing that view. I may mention in passing that in the case of Jodh- Singh A.I.R. 1961 Punj 187 (supra) the Punjab High Court observed that the continued existence of Sub-section (9) in its present form is certainly not very apt and requires looking into by the Legislature. However, it will be conceded, until Sub-section (9) is either deleted or amended in such' a way as to correspond with the first view mentioned above, it must carry as much value as any other statutory provision normally does. So long as Sub-section (9) forms part of Section 145 it cannot be consigned to oblivion, nor considered otiose.
Kapuru And Anr. vs Gulaba on 30 June, 1961
In arriving at that conclusion he relied upon the cases reported in AIR 1959 (1955 is obviously a mistake) All 763, Bhagwat Singh v. State and S. Jodh Singh v. Bhagambar Dass, 63 Pun LR 63: (AIR 1961 Punj 187).
H. Khaliq Dar vs State And Anr. on 13 August, 1969
1. This reference raises a substantial question of law regarding the interpretation of Sub-section (9) read with Sub-section (4) of Section 145 of the Criminal P. C.--a point on which there appears to be a serious divergence of judicial opinion in India. The reference arises out of proceedings drawn under Section 145 with respect to the land in dispute between the parties. It appears that while the proceedings were going on in the Court of the trial Magistrate, the applicant moved an application before the Magistrate for summoning two witnesses namely the Dy. Registrar High Court who was at the time of the dispute the Munsiff Sub-Registrar Srinagar and the Tehsildar of the Nazool Department both of whom had refused to appear in the Court without getting a regular summons from the Court. The learned trial Magistrate rejected the prayer of the applicant on the ground that the applicant had taken a long time to complete the proceedings and had taken several adjournments for arguments. In other words the learned Magistrate rejected the application without considering the same on its merits. Thereafter an application in revision was made to the Sessions Judge Srinagar for making a reference to this Court. This application was resisted by the non-applicants on the ground that the Magistrate had no jurisdiction to summon the witnesses prayed for by the applicant under Section 145(9) and even if these witnesses could have been summoned their evidence could not be considered by the Court under Section 145(4) of the Criminal P. C. It was further contended before the Sessions Judge as also before us that as the witnesses sought to be summoned had not given any affidavits, they were debarred from giving evidence in the proceedings. Reliance was placed by the petitioners on a decision reported in Bhagwat v. State and Jodh Singh v. Bhagambar Das . It appears however, that the Patna, Rajasthan, Madras and M. P. High Courts have taken a contrary view. Before, considering the authorities on the subject, we would like to analyze the relevant provisions of the Criminal P. C. in order to find out the real purpose, scope and ambit of Sub-sections (4) and (9) of Section 145 of the Criminal P, C. Section 145(4) and first proviso runs thus:
Challamuthu Padayachi And Ors. vs Rajavel on 13 September, 1963
This decision was approved and followed by a Bench of the Punjab High Court in Jodh Singh v. Bhagambar Dass. .
Harihar Pati And Ors. vs Bada Pitei Naik And Ors. on 25 April, 1961
In Bahori v. Ghure a contrary view was taken, but I: find that in a very recent Division Bench decision of the Punjab High Court reported in S. Jodh Singh v. Mahant Bhasambar Dass the view taken by me and by the Allahabad High Court has been adopted and the view taken by the Rajasthan High Court has been dissented from and partly distinguished. In the aforesaid Punjab decision it was rightly observed that though Sub-sections (1) and (4) of Section 145, Cri.P.C. were amended, consequential amendments were not made to Sub-section (9) of Section 145, Cri.P.C. and that if Sub-section (9) of Section 145. Cri.P.C. be construed as giving a wide power to the Magistrate concerned to summon any witness, as suggested by the first party, then the first proviso to Sub-section (4) of Section 145, Cri.P.C. would become nugatory in most instances, as it was expressly inserted by the amendment of 1955 it ought to be given full effect. I see therefore no reason to change my previous view or to refer the matter to a larger Bench. The trying Magistrate was, therefore, right in rejecting the prayer of the first party to summon witnesses for the purpose of securing their affidavits. The affidavits should be put in first and then the question of summoning any of them would arise for consideration.
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