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Challamuthu Padayachi And Ors. vs Rajavel on 13 September, 1963 cites

Bhagwat Singh vs State Of Rajasthan on 18 January, 1954

In Bhagwat Singh v. State, it was held that the phrase "hear the parties" in Sub-section (4) could only mean that arguments should be heard and would not include oral examination of the parties and their witnesses. It was further held that Sub-section (9) did not confer any right upon a party to examine a person as its witness but it only laid down the procedure to be followed in procuring the attendance of its witnesses. According to Dessai, J. in , whether a party has a right to examine a witness or not has to be ascertained from provisions other than Sub-section (9) and Sub-section (4) is the only provision to confer a right upon a party to examine a witness orally in the Court, and sub-section (9) must be read with the first proviso to Sub-section (4). Thus, in the view of the learned Judge the powers given to the Magistrate under Sub-section (9) can only be exercised by the Magistrate to summon and examine only persons who have filed affidavits. I regret I am unable to follow this decision for Sub-section (9) is absolute in its terms, and does not provide that it is subject to the conditions laid down in Sub-section (4). Under Sub-section (9) the Magistrate is empowered at any stage of the proceeding Under Section 145 on the application of either party to summon any witness directing him to attend or to produce a document. The procedure under subsection (4) as amended envisages the Magistrate coming to a conclusion on the documents and affidavits filed by the parties without the oral evidence. Sub-section (4) does not relate to witnesses, whom the parties would like to summon through Court. There may be evidence, oral and documentary, in the case, but it could not be made available except by summoning through the Court the witnesses concerned to give evidence or to produce the documents. Sub-section (4) does not in any way state that this type of evidence cannot be produced at all in Section 145 proceedings. The first proviso to Sub-section (4) cannot be read to restrict the powers of the magistrate to summoning the witnesses, who have filed affidavits. Sub-section (4) deals only with statements, documents and affidavits put in by parties and not evidence of third parties, which can only be obtained by issuing summons through Court. I am unable to share the view of Desai, J. in that the power of the Magistrate to summon witnesses is confined only to summoning persons, who have filed affidavits.
Rajasthan High Court - Jaipur Cites 22 - Cited by 10 - Full Document

Bahori S/O Kalloo vs Ghure S/O Balwant And Anr. on 24 April, 1959

The Bench also dissented from the view of the Rajasthan High Court in Bahori v. Ghure, . The learned Judges refrained from expressing any opinion on the view of Rajasthan High Court that the Magistrate has in any event powers Under Section 540, Crl. P. C. to summon witnesses but held that the observations of the Rajasthan High Court regarding, Sub-section (9) are obiter and that they were not able to agree with the opinion so expressed. The Bench also observed that, if the contention that a party had a right to apply for summoning witnesses, whose affidavits had not been filed, was accepted, the very object of Sub-sections (1) and (4) as amended would be nullified and that the procedure instead of being shortened would become doubly cumbersome. The Bench further observed that the continued existence of Sub-section (9) in its present form was certainly not very apt and required looking into by the legislature but that they had no doubt that the right to adduce oral evidence must be confined within the limits imposed by the first proviso to Sub-section (4). I regret I am unable to follow this decision. After amendment of Section 145, Sub-section (9) as it stood before is retained and it must be given its full meaning and cannot be disposed of as not being very apt.
Rajasthan High Court - Jaipur Cites 1 - Cited by 11 - K N Wanchoo - Full Document

Mirza Mohd. Aziz vs Safdar Husain And Anr. on 28 July, 1961

In a recent decision of the Allahabad High Court in Mirza Mohd. Aziz v. Safdar Husain, Mulla, J. following the decision In held that there was no bar to a Magistrate examining a witness Under Section 540 Crl. P. C. and that the proviso to Section 145(4) was confined in its operation to the witnesses who were named by the parties to the dispute. The decision in which hold a contrary view, is not referred to in .
Allahabad High Court Cites 2 - Cited by 8 - Full Document

Kanhaiyalal And Ors. vs Devi Singh on 24 December, 1960

5. In , Sarjoo Prosad, C. J. expressed his view that the first proviso to subsection (4) 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; but the proviso does not preclude the Magistrate from calling as a witness any other person that he thinks proper to examine. The learned judge observed that it would indeed be surprising if the proviso to Sub-section (4) of Section 145, Crl. P. C. was capable of bearing the interpretation which was sought to be placed upon it by the learned counsel that the Magistrate had no jurisdiction to examine a person, who had not filed an affidavit as a Court witness. He also found that the powers of the Court Under Section 540 were not impaired. I am in respectful agreement with the view of the learned Judge in , that the discretion of the Magistrate at any stage of the proceeding to issue summons to a witness on the application of the parties to attend or to produce a document is not in any way restricted by the first proviso to Sub-section (4) of Section 145. The view in was followed by Madhya Pradesh High Court in Kanhaiyalal v. Devi Singh, where it was observed that Sub-section (9) was wider than the first proviso to Sub-section (4) and that there was no such restraint on the Magistrate or on the scope of the examination on oath, if at any stage of the proceeding on the application of either party the Magistrate at his discretion issued summons to any witness directing him to attend or to produce any document or thing. The Court expressed its dissent with we now taken in .
Madhya Pradesh High Court Cites 8 - Cited by 3 - Full Document
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