BHARGAVA, J.—This reference by the learned District Magistrate, Jalore arises out of proceedings under sec. 145 of the Code of Criminal Procedure.

2. On a report by the Station House Officer, Bagora that a dispute regarding possession over Khasra Nos. 681, 675 and 688 in village Nadia between Party A and Party B was likely to cause a breach of the peace, the learned Sub-divisional Magistrate drew up a preliminary order on 22nd August, 1963. He called upon the parties to file their written statements and to produce evidence in support of their respective claims. Accordingly both parties filed documents and affidavits in support of their claims and the learned Sub-Divisional Magistrate on its consideration declared party B in possession of the disputed land and forbade party A from interfering with the possession of party B unless so ordered by a competent court.

3. Aggrieved by this order party A filed a revision application in the court of the District Magistrate, Jalore. Two points were urged in that court:

(1) that the affidavits submitted by party B were inadmissible as they were attested by a Third Class Magistrate.

(2) that the Sub-Divisional Magistrate was in error in deputing the Naib Tehsildar, Bhinmal for site inspection and to treat his memo of inspection as evidence in the case.

4. The learned District Magistrate has agreed with both the contentions and has made a recommendation for setting aside the order of the Sub-Divisional Magistrate, Bhinmal and to direct him to take fresh proceedings in the matter.

5. In this Court arguments have been directed mainly on the first contention. Learned counsel for party A has relied on a decision of the Allahabad High Court in Wahid Vs. State (1). This has also been referred in the order of reference.

6. On the other hand learned counsel for Party B urges that the affidavits were properly sworn before the Third Class Magistrate, Bhinmal and were admissible in proceedings under sec. 145 of the Code. His argument is two fold:—

(1) that the evidence given in proceedings under sec. 145 of the Code by means of affidavits is of a formal character within the meaning of sec. 510-A of the Criminal Procedure Code and as such affidavits sworn or affirmed before any Magistrate are admissible as provided in section 539-AA of the Code.

(2) that by virtue of sec. 4 of the Indian Oaths Act (No.X of 1873) authority to administer oath and affirmation must be deemed to exist in every magistrate as being inherent in him.

7. Therefore the question to be considered is whether affidavits sworn before a third class Magistrate are admissible in proceedings under sec. 145 of the Code pending before a Sub-Divisional Magistrate. The provision of adducing evidence by putting in affidavits in proceedings u/sec. 145 was introduced by Act No. 26 of 1955 so that the enquiry may not be unduly delayed. By the same Act sec. 510-A which permits giving of evidence of a formal character by affidavit was added. Sec. 539 of the Code prescribes the mode of swearing affidavits and affirmations which are to be used before any High Court. Sec. 539-A A which has also been newly added by Act No. XXVI of 1955 lays down that affidavits to be used before any court other than High Court under sec. 510-A or sec. 539-A may be sworn or affirmed in the manner prescribed in sec. 539 or before any Magistrate. This section makes no mention of sec. 145 of the Code. It was urged on behalf of party B that omission of sec. 145 by the legislature in sec. 539-AA is not intentional but is inadvertent. It is urged that the legislature could not have failed to provide the mode of swearing affidavits to be used in proceedings under sec. 145 when it did so in the case of secs. 510-A and 539-A of the Code. But, whether the omission is intentional or inadvertent is no concern of the court and a causus omissus cannot be supplied by a court of law. In Du Pont Vs. Mills (2) the court stated the general rules thus:

"While the court may interpret doubtful or obsc

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