Only persons who have filed affidavits u/s 145(1) can be summoned to give evidence as witnesses in Section 145 proceedings.

This petition is filed to revise the order of the Sub-Divisional Magistrate, Ariyalur, issuing summons to witnesses to give evidence in section 145, Criminal Procedure Code proceedings. The petitioners are B Party in section 145 proceedings in the lower Court. The A Party filed an application for issue of summons to Karnam and the Sub-Inspector of Police to give evidence, and it was ordered by the trial Court. The contention of the learned Counsel for the petitioners is that the lower Court is not entitled to examine persons as witnesses, who have not filed affidavits under section 145 (4), Criminal Procedure Code.

Section 145, Criminal Procedure Code, was amended by Amendment Act XXV of 1955. Under section 145, as it stood before the amendment, it was found that the enquiry took considerable time. In order to obviate the delay, an amendment was introduced to section 145. According to the old section, whenever there was a dispute likely to cause a breach of the peace concerning a land, the Magistrate was to make an order requiring the parties to attend Court and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. After receiving the written statements the Magistrate was required to peruse the statements, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, and if possible, decide which of the parties was at the date of the order in such possession. With a view to expedite the proceedings, under the amended section, it is provided that the Magistrate shall call upon the parties to put in written statements in respect of the fact of actual possession of the subject of dispute and in addition further require 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. Thus in addition to requiring the parties to file written statements, under the new procedure, the parties are also required to put in documents and to adduce, by putting in affidavits, the evidence of such persons, which they rely upon. Instead of receiving all such evidence as may be produced by the parties, under the new procedure the Magistrate is required to peruse the statements, documents and affidavits put in by parties and conclude the enquiry. The Magistrate is empowered, if he thinks fit, to summon and examine any person whose affidavit has been put in as to the facts contained therein. Under the new sub-section the enquiry is to be concluded on perusing the statements, documents and affidavits put in by the parties. Discretion is given to examine any person who has put in an affidavit. Under the sub-sections above enumerated in the new procedure the enquiry has to be concluded without taking evidence except under the discretion of the Magistrate by examining persons who have put in affidavits. But the original sub-section (9) as it stood before the amendment is retained in full. Sub-section (9) reads as follows: —

“The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.”

Under this sub-section the Magistrate is empowered in his discretion at any stage of the proceedings of the application of the parties to summon a witness to attend or to produce any document. The submission of Mr. R. Santhanam, learned Counsel for the petitioners is that sub-section (9) to section 145, Criminal Procedure Code should be read along with other sub-sections to that section and that the discretion given to the Magistrate under sub-section (9) can only be exercised either for the purpose of examining a witness, who has filed an affidavit under the Proviso to sub-section (4) or for examining a witness to show that no dispute as complained existed under sub-section (5) to section 145. To sub