A Magistrate has the power to examine witnesses orally in a proceeding under Section 145, Cr.P.C., even if their affidavits have not been filed, provided that the examination is considered fit and proper.

This referencee has been made, by the learned Sessions Judge, Mahasu, Sirmur, Bilaspur and Kinnaur Sessions Division, recommending that the order of the learned Magistrate first class, Arki, in a case under section 145, Cri. P. C., be set aside and the case remanded to him for passing fresh orders after making proper inquiry as required by sub-section (1) of Sec. 145, Cri. P. C.

2. It appears that the parties to the proceeding did not file any affidavit and instead examined witnesses in support of their respective cases. The learned Sessions Judge was of the opinion that the aforesaid procedure was in contravention of sub-sec. (1) of Sec. 145, Cri. P. C., and the order of the learned Magistrate was liable to be quashed on that score. In arriving at that conclusion he relied upon the cases reported in AIR 1959 (1955 is obviously a mistake) Ali 763, Bhagwat Singh v. State and S. Jodh Singh v. Bhagambar Dass, 63 Pun LR 63 : (AIR 1961 Punj 187).

3. In the AIR 1959 All 763 case the opposite parties did not file any affidavit and got summonses issued for four witnesses and examined them. The Magistrate found that the opposite parties were in possession of the disputed land. An application in revision was filed by the applicants and it was contended that the Magistrate had no jurisdiction to examine witnesses orally and the proceeding was vitiated on that ground. This contention found favour with M. C. Desai, J. (now the Chief Justice of the Allahabad High Court).

4. The facts of the aforesaid Punjab case were that the parties filed affidavits of witnesses and the respondents made an application for summoning 51 witnesses out of whom 10 were summoned by the learned Magistrate. A revision was filed against that order and it was contended that the trial Magistrate had no jurisdiction to summon witnesses whose affidavits had not been filed and following the aforesaid Allahabad case the contention was accepted.

5. Prior to the amendment of Sec. 145, Cri. P. C., by the Amendment Act No. 26 of 1955 witnesses used to be examined orally and it was not open to a party to file an affidavit of a person proposed to be examined as a witness. With a view to expedite the disposal of the proceedings the section was amended and the relevant portion of it runs as below :

"(1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subjects 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 claims."

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"(4) 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, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him 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 :

Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein.

Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispos