The Magistrate must consider the affidavits filed by the parties under Section 145(4) of the Code and provide reasons for accepting or rejecting them.

Raj Kishore Prasad, J.

1. This is a reference, under Sec. 438, Criminal Procedure Code, hereinafter referred to as the Code made by the learned 2nd Additional Sessions Judge of Santal Paraganns, Dumka, recommending that the order of the 28th March 1981, of Mr. K.P. Sinha, Magistrate First Class, Godda, passed under Sec.145 of the Code, declaring the possession of the first party, who are the opposite party here, should be set aside.

2. The learned Judge, in his letter of reference, has discussed the facts and the law with great clarity and fully in order to show that the impugned order does not conform to the provisions of Sub-section (4) of Sec.145 Of the Code, in that, the affidavits had not been considered by the learned magistrate as required by Sub-section (4) of Sec.145 of the Code. The learned Judge, in support of this reference, has referred to and relied upon two decisions of Sahai, J., in Jamilur Rahman V/s. Abdul Aziz, 1960 BLJR 179 : (AIR 1960 Pat 240) and Rudra Singh V/s. Bimla Debi, 1960 BLJR 328 : (AIR 1960 Pat 505) in which it has been held that the magistrate should consider the affidavits of each deponent, and, his order without consideration of such affidavits cannot be upheld.

3. Recently, I had also an occasion to consider this question and to interpret Sub-section (4) of Sec.145 of the Code in Sohan Mushar V/s. Kailash Singh, Criminal Ref. No. 86 of 1961, D/- 29-9-1961 : (AIR 1962 Pat 249) and, I held there that the word "peruse", used in Sub-section (4) of Sec.145, means "to go through critically that is, "to read attentively and examine critically in detail one by one".

4. The test to find out if the magistrate has considered the affidavits, filed by the parties, is to see if he has applied his mind to them and examined critically in detail, one by one, each of the affidavits filed by the parties and given reasons for accepting or not accepting them. It should appear from the order of the magistrate that he has in fact given consideration to the affidavit of each deponent and had given reasons for accepting or rejecting the same. He must mention who the several deponents are whose affidavits have been filed and why She statements contained in the affidavits of a particular deponent should not be accepted. Each affidavit has to be considered just like oral evidence of a witness. It is to be remembered that under the amended Sec.145 of the Code these affidavits have taken the place of oral evidence and now the parties have no right to examine a witness unless his affidavit is on the record. The Court has, therefore, been given the discretion under the First proviso of Sub-section (4) of Sec.145 to examine any witness, if he likes, whose affidavit has been filed, in order to test the statements contained therein. If the affidavits of each party are considered in a bunch, in one lump, without giving reasons for doing so, is, no consideration of the affidavits. If, however, there exists one ground for accepting or rejecting an affidavit, and that ground equally holds good in case of other affidavits also, then certainly in such a case the magistrate can give that one ground for accepting or rejecting the affidavits of more than one person, and, he can take them all in one lump and consider them together. The affidavits are not simply to be mentioned for the sake of formality and mechanically dealt with. The magistrate must apply his mind to each affidavit and go through it one by one and on the facts and circumstances of the casa and on the documentary evidence on the record, see if it can be accepted or rejected. He must peruse each affidavit and then consider and weigh it. It is his bounden duty to do so. It should be remembered that the success of a party does not depend on the number of the affidavits filed but on the quality and reliability of the deponent swearing such affidavits. For instance, if a deponent, whose affidavit is on the record, is a boundary witness, his affidavit prima facie is