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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
A.S. Anand, J.
Ahmed Wani - Appellant
Versus
Habib Ullah Ahanger & Ors. - Respondent
Cr. Revision No. 36/1979
Decided On : 05 June, 1980
CRIMINAL PROCEDURE CODE - SECTION 145 - AFFIDAVIT SWORN BEFORE OATH COMMISSIONER - ADMISSIBILITY - PRELIMINARY ORDER - SERVICE OF NOTICE - PUBLICATION - MANDATORY REQUIREMENTS - NON-COMPLIANCE - EFFECT - AGRARIAN REFORMS ACT, 1972 - LAND COVERED BY DEFINITION - DETERMINATION - NECESSITY FOR EVIDENCE.
Fact of the Case:
An application was filed under Section 145 Cr. P. C., alleging forcible entry and construction on the property by the non-applicant despite an injunction against interference with possession. The magistrate drew up a preliminary order and attached the property. The petitioner challenged the order on grounds of inadmissibility of an affidavit sworn before an oath commissioner, non-compliance with Section 145(3) Cr. P. C. regarding service and publication of notice, and lack of jurisdiction due to the property being covered by the Agrarian Reforms Act, 1972.
Finding of the Court:
1. The affidavit sworn before an oath commissioner was inadmissible in evidence under Section 539 Cr. P. C. of the State, which barred such affidavits for use in criminal proceedings unless made before the court, a magistrate, or another court in the State. 2. The non-compliance with Section 145(3) Cr. P. C. regarding service and publication of notice was a violation of mandatory provisions and rendered the order illegal. 3. The question of whether the land in dispute fell within the definition of land under the Agrarian Reforms Act, 1972 was a mixed question of law and fact that required evidence and could not be determined without giving the parties an opportunity to present their cases.
Issues: 1. Whether an affidavit sworn before an oath commissioner is admissible in evidence in proceedings under Section 145 Cr. P. C. 2. Whether non-compliance with Section 145(3) Cr. P. C. regarding service and publication of notice renders the order illegal. 3. Whether the property in dispute is covered by the definition of land under the Agrarian Reforms Act, 1972.
Ratio Decidendi: 1. The provisions of Section 539 Cr. P. C. of the State clearly state that affidavits to be used before any court exercising criminal jurisdiction must be sworn and affirmed before such court, a magistrate, or another court in the State, with limited exceptions. The legislature has placed a bar on affidavits attested and sworn before an oath commissioner for use in criminal proceedings in the State. 2. The provisions of Section 145(3) Cr. P. C. regarding service and publication of notice are mandatory, and failure to comply with them renders the order illegal. The petitioner was prejudiced by the non-publication of the notice, as he did not participate in the proceedings before the attachment order was made. 3. The determination of whether the land in dispute falls within the definition of land under the Agrarian Reforms Act, 1972 is a mixed question of law and fact that requires evidence and an opportunity for the parties to present their cases.
Final Decision: The preliminary order of the magistrate and all subsequent proceedings were vitiated due to the inadmissibility of the affidavit, non-compliance with Section 145(3) Cr. P. C., and lack of evidence regarding the land's coverage under the Agrarian Reforms Act, 1972. The revision petition was allowed, and the preliminary order and subsequent proceedings were set aside. The magistrate was permitted to make a fresh order in accordance with the law.
2. Appearing for the petitioner (respondent No. 1 Mr. Qayoom, learned counsel, has urged that the preliminary order as well as subsequent proceedings stood vitiated on the following three counts :
1 that the affidavit filed by the applicant in support of his application had been sworn before an oath commissioner, and was as such, inadmissible in evidence. Since, the learned magistrate had relied upon such evidence while drawing up the preliminary order, it stood vitiated ;
2 that the preliminary order was passed without due compliance with the mandatory requirements of section 145 (3) Cr. P. C. and as such the order was, vitiated ; and
3 that the property in respect of which proceedings had been taken was covered by the definition of land as defined in the Agrarian Reforms Act, 1972, and in view of the amendment made to the Code of Criminal Procedure, vide Act No. 2 of 1974 the judicial magistrates, had been divested of the powers to deal with such property in proceedings under section 145 Cr. P. C. and as such the order made was without jurisdiction.
3. I have pursued the record and heard learned counsel for the parties.
4. The affidavit which was filed alongwith the application seeking initiation of proceedings under section 145 Cr. P. C. was attested by and sworn before an oath commissioner, whether such an affidavit can be read in evidence or not in proceedings under section 145 Cr. P. C. is the first question to be considered ? Whereas according to the petitioner it cannot be so read, Mr. Kaul appearing for the respondent insists that there is no bar to reading such an affidavit in evidence. This question came up for consideration before this court in Bashir Ahmed Bhat and anr. Vs. Gh. Qadir Mir & others 1980 Cr. Law Journal 152, and it was held by a learned Single Judge, after noticing the provisions of S. 539 Cr. P. C., that an affidavit filed in the proceedings under section 145 Cr. P. C. which had been sworn and affirmed before an oath commissioner, could not be read in evidence This judgment was noticed with approval by a Division Bench of this court in Abdul Khaliq Vs. Mohmvi Sidiqi Arram 1980 Cr. Law Journal 153. It is, thus, obvious that according to the view of this court, an affidavit filed in the proceedings filed under Section 145 Cr. P. C. which is attested by and sworn before an oath Commissioner is not admissible in evidence.
5. Mr. P. L. Kaul, learned counsel for respondent No. 1, (applicant in the original proceedings) has, however, placed reliance on the judgment of the Supreme Court in SLP (CRL) No; 2664 of 1979 decided on 22-10-1979 to canvass his point of view. Their lordships of the Supreme Court opined : in the said judgment :
We must certainly say that the court perhaps, was not right in not locking into the affidavits filed by the parties merely on some technical grounds like that the affidavits were attested before the oath Commissioner and not before the court.........
Undoubtedly, the expression by the Supre
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