The right to cross-examine a witness summoned and examined by the court under Section 145 of the Criminal Procedure Code should not be denied.

1. This revision petition u/s 439 Criminal Procedure Code is directed against a composite order dated 12-8-1977 passed by the City Magistrate, Jammu, in proceedings u/s 145 Code of Criminal Procedure between the parties whereunder the court below has rejected two applications viz:

(i) an application under first proviso to sub-section (4) of Section 145 Cr. Pr. Code for resummoning one Bhola Bhagat, who as a witness had filed an affidavit in support of the contentions of the opposite party: and

(ii) a prayer for summoning certain persons for examination as witnesses under sub-section (9) of Section 145 Cr. Pr. Code.

The facts that led to the present proceedings are in brief as follows:

2. The Police Pacca danga, Jammu, lodged proceedings u/s 145 Cr. Pr. Code against the petitioner herein who consist one set of non-applicants, and against non-applicants 2 to 7 herein as comprising the second set of the non-applicants. The dispute was with regard to the possession of a building of Kashyap Rajput Sabha located in Moti Bazar, Jammu. The proceedings u/s 145 Cr. Pr. Code were in the first instance initiated before the judicial Magistrate (Munsiff) Jammu, from where these were latter transferred to the court of the City Magistrate, Jammu, for disposal. The parties as directed adduced evidence through affidavits in the court of City Magistrate. The petitioners herein on perusal of the affidavits filed before the learned Magistrate by the opposite party prayed for summoning of and examination in the court of some of the deponents with regard to the particulars stated by them in their affidavits. The learned Magistrate summoned only one deponent namely Bhola Bhagat for examination in the court. Bhola Bhagat appeared and was examined by the Court. The petitioners herein submitted that they be permitted to cross-examine the witness. The request was however, not granted by the learned Magistrate, who held that there was no provision in Section 145 Cr. Pr. Code under which the petitioners herein or any other party to the proceedings could be permitted to cross-examine a witness who was examined by the court under proviso (1) to Sub-section (4) of Section 145 Cr. Pr. Code. The refusal of the trial court to permit the petitioners herein to cross-examine the witness is their first grievance in this petition. The second grievance is that the learned Magistrate without any justification arbitrarily rejected the prayer of the petitioner herein for summoning and examining a number of witness of the petitioner who were requested to be summoned under the provisions of Sub-section (9) of Section 145 Cr. Pr. Code. The petitioners herein submitted before the learned Magistrate that the witnesses intended to be so summoned were Government Officials and as such it has not been possible for the petitioners herein to obtain their affidavits as they had refused to be identified with any party in dispute. The reasoning however, did not prevail with the learned Magistrate who in the impugned order held that the witnesses did not appear to him to be in any way conversant with the factum of actual possession. The petitioners herein have alleged that the rejection by the learned trial Magistrate under the circumstances was not founded on any rational basis and the reasoning given by the trial Magistrate therefore, was nothing more than a bald surmise which was wholly improper and illegal.

3. When the matter came up for hearing before one of us on 12th December 1977, the following order was passed:

"After hearing the learned counsel for parties for some time, I feel that an important question of law so far as the interpretation of the word "examine" occurring in proviso to sub-section (4) of Section 145 of the Code of Criminal Procedure has arisen which may be decided by a larger bench.

It is therefore, directed that the petition be placed before my Lord, the Honble Chief Justice for constituting a larger Bench to hear this revision petition."

It is in