1. This revision petition is directed against the order dated 25-3-1997 passed by the learned Sub Registrar, Judicial Magistrate 1st class, Jammu whereby he has allowed the production of the duplicate affidavits (the originals whereof stood already produced on the record). The production was allowed at the final stage of the case when the case was posted for hearing the arguments. The order was challenged by filing revision petition before the learned Sessions Judge, Jammu who transferred the same for adjudication to the learned 1st Addl. Sessions Judge, Jammu who vide his order dated 21 -4-1997 concurred with the findings of the trial court and held that there was no illegality in the order and that the trial Magistrate had ample powers to cause production of these duplicate affidavits under sub-clause (9) of Section 145 Cr.P.C.

2. These orders have been challenged herein on the ground that they go against the ratio of the judgment of this court which was given in the case of Bashir Ahmed Bhat Vs. Gh. Qadir Mir (1980 KLJ 16).

3. Heard the arguments.

4. Mr. Saini has contended that the Magistrate had no power to fill up the lacuna left by the respondent and by the illegal exercise of this power his right to get the petition dismissed has been scuttled. In support of his contention he has cited the case of Bashir Ahmed (supra). It is also contended that sub-clause^) of Section 145 Cr.P.C. does not invest the Magistrate with any power to take away a legal right of a party which under law has vested in him. It is also pleaded that it is not an interlocutory order as it has been passed in abuse of the legal power and established law and that it has scuttled the legal right of a party. To buttress his contention, the learned counsel has cited the case of Amar Nath Vs. State of Haryana and others (AIR 1977 SC 2185). The ration of this judgment is that where the law is abused then that is not interlocutory order.

5. These arguments have been controverted by the opposite counsel by stating that the Magistrate had taken the cognizance of the proceedings whose primary duty was to protect the breach of peace. He was satisfied about the breach of peace existing on the spot, so the preliminary order was passed. That the original affidavits were got attested by over-sight from an Oath Commissioner and when during the course of arguments this defect was detected the duplicate thereof duly attested by the Magistrate were produced.

6. Under sub-clause (9) of Section 145 Cr.P.C. the Magistrate had the power to call any witness or get any document produced by way of evidence and in that manner these affidavits were taken on record. In support of his contention he has cited

AIR 1968 Raj 324

AIR 1966 Raj 5

AIR 1969 Ali 405

AIR 1967 Manipur23

7. In AIR 1977 SC 2185 (supra) it has been held that the inherent powers of the court can ordinarily be exercised when there is no express provision on the subject matter. Where there is an express provision, barring a particular remedy, the court cannot resort to the exercise of inherent powers, in AIR 1978 SC 47 (supra) it has been reiterated that the inherent power should not be exercised as against the express bar of law engrafted in any other provision of the Code.

8. In AIR 1969 AIL 405, it has been held that if the evidence is of formal character, the affidavit verified by Oath Commissioner is admissible in evidence and in case the evidence is not of formal character affidavits have to be verified by the Magistrate himself.

9. In AIR 1966 Raj 5, it was held that the affidavits could not be sworn before the 3rd class Magistrate who had no authority to receive evidence in such case. In the case of Bashir Ahmed Bhat and Anr vs Ghulam Qadir Mir and others (supra) it has been held that affidavits filed during the proceedings held under Section 145 Cr.P.C. must be sworn before any court and the affidavits sworn before an Oath Commissioner are in-admissible in evidence.

10. In AIR 1968 324, it is held