A Magistrate has the discretion to summon and examine any witness at any stage of a proceeding under Section 145 of the Code of Criminal Procedure, on the application of either party, under Sub-section (9), even if such a person has not filed an affidavit contemplated by Sub-section (1).

Ramratna Singh, J.

1. The petitioner, who was the second party in a proceeding under Sec.145 of the Code of Criminal Procedure, has come up to this court against an order dated the 6th May, 1961, passed by the Subdivisional Magistrate of Buxar. On a police sub-Inspectors report dated the 15th October, 1959, the aforesaid proceeding was started on the 22nd October, 1959, and the parties were directed to file their written statements, affidavits, etc., by the 15th November, 1959. The dispute was in respect of a small piece of land near Sidhnathghat of the river Ganga in the town of Buxar, This land was also attached under Sec.145(4) of the Code. There were three claimants of whom one is the petitioner and the other two are the opposite parties in this court. The report of the sub-inspector of police was based on a telephonic message received from the D. I. of Police, Buxar, which disclosed that there was an apprehension of some trouble between two of the parties. Instead of filing written statements or affidavits, the petitioner and one of the opposite parties raised objections regarding the description and identity of the disputed land.

The sub-divisional Magistrate deputed a pleader commissioner and then an amin for fixing the location of the land in dispute, but even then there were objections by the same party. Ultimately, on the 17th February, 1961, a fresh proceeding under Sec.145 was started by the subdivisional Magistrate describing the land in dispute as given in the amins map prepared on the 22nd December, 1960. It will, therefore, be noticed that even the exact identity or the land in dispute remained undetermined for more than a year and one cannot be sure if there was really any apprehension of a breach of the peace in October, 1959. The parties filed their written statements between the 21st March, 1961, and the 1st April, 1961. But none of the three claimants ever cared to file any affidavit. Instead, on the 10th and the 17th April, 1961, the petitioner filed petitions praying for summoning Sri P.C Sen of the Bihar Civil Service then posted at Gaya, Sri Dharnidhar Missir, Deputy Superintendent of police, then residing in mahalla Chiraiyatanr at Patna and Sri Mohammad Ibrahim Hashmi, retired Deputy Superintendent of Police, then residing at his village home in Patna District, on the ground that they were formerly posted at Buxar and they were competent to speak about the possession of the disputed land.

There was an alternative prayer for directing them to swear affidavits to be filed in the proceeding. By the impugned order the learned Magistrate refused both the prayers. The learned advocate for the petitioner did not dispute that portion of the order by which the prayer for directing the aforesaid three gentlemen to swear affidavits was rejected. But he has challenged the other part of the order, namely, the refusal by the Magistrate to summon the three gentlemen as witnesses on behalf of the petitioner.

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/s. State, AIR 1959 All 763 and Jodh Singh V/s. Bhagambar Dass, AIR 1961 Punj 187. Mr. Gorakh Nath Singh, who appeared for the contesting opposite parties, relied on these decisions as well as two other decisions, namely, B.D. Naldu V/s. Shamsheer Jung Bhadur, AIR 1957 Mys 21 and Keshab Acharya V/s. Somenath Behera, AIR 1958 Orissa 79. These decisions support the view of the learned Magistrate. On the other hand, Mr. Jagdish Pandey who appeared for the petitioner relied on a decision of the Rajasthan High Court in Bahori V/s. Ghure, AIR 1960 Raj 15 a decision of the Allahabad High Court in Mirza Mohd. Aziz V/s. Sardar Hussain, AIR 1962 All 68 and a decision of the Judicial Commissioner of Himachal Pradesh in Kapuru V/s. Gulaba, 1962(1) Cri LJ 34: (AIR 1962 Him Pra 5).

3. As the Punjab decision, wh