In a proceeding under Section 145 of the Code of Criminal Procedure, the Magistrate is required to consider the affidavits filed by the parties and other evidence to determine the question of actual possession at the relevant date, and is not concerned with the right to possess or previous possession, except as provided by the Second Proviso to Section 145(4).

1. This is a reference under S. 438 of the Code of Criminal Procedure, which for the sake of brevity will be referred to hereinafter as the Code, by the then Additional Sessions Judge, Motihari, for setting aside the order of November 8, 1960, passed, by a 1st class Magistrate of Bettiah, under Section 145 of the Code, declaring only Kailash Singh, one of the opposite party here, to be in possession of the land in dispute.

2. The grounds given by the learned Judge, in his letter of reference, for quashing the impugned order, are, first, that the affidavits have not been considered, and, secondly, that the Magistrate has confused between right to possess, and, actual physical possession, and has not kept in view the principle laid down by a Full Bench of this Court in S. M. Yaqub v. T. N. Basu, AIR 1949 Pat 146 (FB) at p. 162.

3. In support of the first ground of the reference, Mr. Purnendu Narayan relied on two decisions of Sahai, J. sitting singly in Jamilur Rahman v. Abdul Aziz, 1960 BLJR 179 : (AIR 1960 Pat 240) and Rudra Singh v. Bimla Debi, 1960 BLJR 328 : (AIR 1960 Pat 505).

4. Sub-section (1) of Section 145, which deals with the procedure where dispute concerning land, etc. is likely to cause a breach of the peace, after its amendment by Act 26 of 1955, (so far as necessary), says

"....... He (i.e. the Magistrate) shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute .......... to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute 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 claim."

5. Sub-section (4) of Section 145, after its Amendment by Act 26 of 1955, so far as material provides :

"The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry ....... 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."

6. It is manifest, therefore that now under the amended sub-section (1) of Section 145, the parties can put in affidavits the evidence of such persons as they rely upon in support of their claim of actual possession of the subject of dispute, and, under the amended sub-section (4) of of Section 145, the Magistrate is bound to take into consideration, in deciding, if possible, whether any and which of the parties was, at the date of the order passed earlier under Section 145(1), in actual possession of the subject-matter of the dispute, also such affidavits filed by the parties, and his omission to do so will surely vitiate his judgment. These affidavits, now required to be filed by the parties by the amended sub-section (1) of Section 145, take the place of oral evidence. The Magistrate, therefore, for deciding the question of such possession, has to peruse the statements of the parties, as also documents and affidavits, if any, so put in by the parties. The First Proviso to sub-section (4) of Section 145, further, empowers the Magistrate, if he thinks fit, to summon and examine any person, whose affidavit has been put in, as to the facts contained therein. It is plain, therefore, that under the amended Section 145 only affidavits can be put in evidence and a person cannot be examined as witness unless his affidavit is on record. A Magistrate, as such, cannot now allow a party to examine witnesses whose affidavits are not on the record.

7. In order to decide, however, if the first ground of attack of the learned Judge against the order of the Magistrate is justified, it is necessary to know what is meant by non-consideration of the affidavits. Sahai, J., has in