Affidavits sworn before a Magistrate not seized of the case are admissible as evidence in proceedings under S. 145, Cr. P. C. in the State, based on the express phraseology of Sec. 539 of the State Code of Criminal Procedure.

In Criminal Revision No. 17 of 1976, which came up for hearing before one of us (Anand, J.) an argument was raised on behalf of the petitioner that the affidavits sworn before a Magistrate who was not seized of the case could not be relied upon and treated as evidence in proceedings under S. 145, Cr. P. C. The argument found support from the decision of a single Judge of this Court (Mir, J.) in a case reported in 1977 Kash LJ 428. The observation made in 1977 Kash LJ 428 was based upon a judgment of the Supreme Court reported in AIR 1977 SC 407. Doubt was, however, expressed on the soundness of the proposition of law enunciated in the aforesaid decision of (Mir, J.) by learned counsel for the respondent. It was argued that S. 539 of the State Code of Criminal Procedure and S. 539 of the Cr. P. C. (Central) were differently worded and, therefore, the Supreme Court decision had no application to the law for the time being in force in the State and as such the judgment of Mir, J. required reconsideration. Being of the view that the points raised were of importance and the view expressed by Mir, J. in 1977 Kash LJ 428, required reconsideration, Anand, J., referred the case to the Division Bench for an authoritative pronouncement. That is how the question has come up before this Division Bench.

2. In order to appreciate the rival arguments, it will be advantageous to first reproduce the relevant sections of the respective Code :-

Section 539 of the State Code reads as under :-

"539. Courts and persons before whom affidavits may be sworn. - Affidavits and affirmations to be used before any Court in the State may be sworn and affirmed before such Court or any Magistrate or other Court in the State, but if the affidavit or affirmation is made outside the limits of the State, it may be sworn or affirmed before any tribunal competent in that behalf according to the law of locality where the affidavit or affirmation is made."

Section 539 of the Cr. P. C. (Central) provides as follows :-

"539. Affidavits and affirmations to be used before any High Court or any officer of such court may be sworn and affirmed before such court or the (clerk of the State) or any Commissioner or other person appointed by such Court for that purpose, or any Judge or any Commissioner for taking affidavits in any court of record in (India) or any Commissioner to administer oaths in England or Ireland or any Magistrate authorised to take affidavits or affirmations in Scotland."

On consideration of the matter, we are of the opinion that the argument of the learned counsel for the petitioner that the affidavit sworn before another Magistrate does not constitute evidence in proceedings under S. 145, Cr. P. C. even in this state is devoid of merit. The restriction embodied in the Central Code has not been incorporated in the State. As a matter of fact, Shri R. N. Kaul, learned counsel for the petitioner has before us frankly conceded that in view of the express phraseology of Sec. 539 as it exists in the State Code of Criminal Procedure, the argument canvassed by him is not sustainable and that affidavits sworn before Magistrate not seized of the case can also be read in evidence in this State.

3. A perusal of the judgment of Mir J., shows that the distinction between the phraseology of Sec. 539 of the State Cr. P. C. and in the Central Cr. P. C. was not brought to his Lordship's notice and it was perhaps for this reason that his Lordship while taking the view that the affidavits were not admissible in that particular case, was influenced by the language employed in Sec. 539 as it exists in the Cr. P. C. (Central) and reliance was placed on the Supreme Court judgment (Supra). It is, however, quite manifest that the words used in Sec. 539 of the State Code leave no room for doubt that an affidavit sworn before a Magistrate (other than the one trying the case) is also valid affidavit and the same can be pressed into service in proceedings under Sec. 145, Cr. P. C. subje