In a proceeding under Section 147 of the Criminal Procedure Code, the parties must be allowed to adduce oral evidence and the Magistrate cannot base his judgment entirely on the result of his local inspection.

K.Sahai, J.

1. This application is directed against the final order passed in a proceeding under Sec.147 of the Code of Criminal Procedure relating to a dispute over the first partys right of user on the second-partys land.

2. Appearing On behalf of the first party petitioner, Mr. R.S. Sinha has urged two points. The first point is that the learned Magistrate has riot followed a correct procedure, and the second point is that he has illegally, used the result of his local inspection as the sole basis of his judgment.

3. I will take up the points in the order in which I have mentioned them. The order of the Magistrate dated the 9th August, 1958 is as follows:.

"Parties present. Affidavits and documents have got to the filed. Let the parties file affidavits etc. by 30-8-1958".

In pursuance of the order, the parties filed affidavits- and no evidence was adduced on behalf of either side. Mr. Sinha has contended that the procedure of Sec.145, as amended by Act XXVI of 1955, does not apply in a proceeding under Sec.147 and that, in a proceeding under the latter section, the parties have to be allowed to adduce evidence which is to be taken by the court. Appearing on behalf of the second party, Mr. T.K. Prasad has first argued that evidence may be given even in a proceeding under Sec.147 in the form of affidavits, and has secondly contended that, in any case, the learned Magistrate has committed no illegality because he did not accept any oral evidence simply because the parties did not adduce any such evidence.

4. It is to be remembered that under the Criminal Procedure Code, as it stood before the. amending Act, (Act XXVI of 1955), the procedure for taking evidence in a proceeding under Sec.147 was exactly the same as that in a proceeding under Sec.145. Under the amending Act, the words "in the manner provided in Sec.145, and the provisions of that section shall, as far as may be, be applicable in the case of such inquiry" have been omitted from Sub-section (1) of Sec.147 and, in their place, the words "in the manner hereinafter provided" have been substituted. Subsection (1-A) has been added and that provides:

"(1-A) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists and the provision of Sec.145 shall, as far as may be, be applicable in the case of such inquiry".

Thus, the procedure, now to be followed in a proceeding under Sec.147 is the same as that in a proceeding under Sec.145 before the amending Act of 1955 came into effect. The procedure in a proceeding under Sec.145 has, however, been altered. Sub-section (1) of that section provides that the parties should be called upon to adduce the evidence of persons by putting in their affidavits. Sub-section (4) of the section lays down that documents and affidavits are to be considered by the Magistrate and he has to decide the question of possession "as far as may be practicable within a period of two months from the date of the appearance of the parties before him".

5. In support of his argument that evidence in a proceeding under Sec.147 also may be adduced in the form of affidavits, Mr. T.K. Prasad has relied upon the words "and the provisions of Sec.145 shall, as far as may be, be applicable in the case of such inquiry" in Sub-section (1-A) of Sec.147. In my judgment, there is no substance in this argument. These words merely indicate that, in respect of other matters of procedure, the procedure to be followed in a proceeding under Sec.147 will, as far as possible, be the same as that in a proceeding under Sec.145.

As it has, been clearly laid down in Sub-section (1-A) of Sec.147 that the Magistrate shall receive all such evidence as may be produced by the parties respectively, and as nothing has been said in that sub-section about a