Affidavits of witnesses meant for use under Section 145 of the CrPC must be sworn before the Magistrate before whom the proceedings are pending.

B.P. Sinha, J.

1. This revision application is directed against a final ORDER :passed in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter to be referred to as the Code), by which the members of the first party have been declared to be entitled to possession of the disputed property. The disputed land belonged to one Ram Narain Lal. Ram Narain Lal was uncle of the members of the first party who are opposite party here, by agnatic relationship. Petitioner Mahendra Prasad Sinha, second party, is husband of Kawal Kumari alias Kawali, sister of Bhagirath Lal, opposite party no. 1.

2. The case of the first party is that Ram Narain Lal was living joint with them and he died in a state of jointness with them without leaving any issue. Consequently the members of the first party have been coming in possession of the entire disputed land.

3. The case of the second party is that Kawal Kumari had lost her parents in her infancy. Ram Narain Lal, who had no issue brought her up as her own daughter and married her with Mahendra Prasad Sinha, second party. Mahendra Prasad Sinha along with his wife used to live with Ram Narain Lal and used to nurse him during his illness at Patna where he had come for proper medical treatment. Ram Narain Lai, thus being pleased, executed a will in favour of Mahendra Prasad Sinha. Mahendra Prasad Sinha used to look after the properties of Ram Narain Lal during his life time and after his death he came in exclusive possession of the disputed land. He applied for probate of the aforesaid will. After hot contest by the first party, the probate with a copy of the will annexed has been granted to Mahendra Prasad Sinha.

4. One Kamta Nath Singh and two other persons, who are opposite party, intervened in the proceeding claiming the disputed land by virtue of inheritance.

5. The parties filed documents and affidavits in support of their respective claim, on a consideration of which the learned Magistrate found possession over the disputed land with the first party. He made a declaration accordingly, as noted above. Mahendra Prasad Sinha, second party, has therefore filed this revision application.

6. Mr. Lal Narain Sinha, appearing for the petitioner, has submitted two points:

(i) The learned Magistrate was wrong in accepting the affidavits of the witnesses, which were sworn before Magistrates, who were never in seisin of the case, and as such the ORDER :based upon such affidavits is fit to be set aside.

(ii) The learned Magistrate refused to consider some of the documents filed on behalf of the petitioner.

7. In connection with the first point, the learned counsel has submitted that prior to the amendment of Section 145 of the Code in the year 1956, the parties were to adduce oral evidence before the court where case was pending to prove possession, but the amendment has simply introduced a method of proof by affidavits of persons on whom the parties rely in support of their case. He has urged that the evidence has to be given before the Magistrate, who is in seisin of the case and such evidence which prior to the amendment could have been given by examining the witnesses can be given by affidavits sworn by them before that Magistrate. In other words, his submission is that affidavits sworn before any other Magistrate, who was not in seisin of the case at the moment, are not admissible as evidence in the case. On the other hand the contention of Mr. Kailash Roy appearing for the opposite first party is that in absence of any specific provision in the Code in this regard, affidavits attested by any Magistrate, in whom authority to administer oath exists under Section 4 of the Indian Oaths Act (Act No. X of 1873), are admissible in evidence in proceedings under Section 145 of the Code.

8. The relevant provisions of the Code referred to by the parties are:--

145(1) Whenever a District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class is satisfied from a police report or ot