The power of the Court under Section 540, Cr. P. C. should not be used to favour one party or the other and that it should also not be resorted to, to enable a party to evade the provisions of Sub-section (4) of Section 145, Cr. P. C.

R. L. NARASIMHAM, C. J.

( 1 ) THIS is a reference by the Addl. District Magistrate, of Cuttack recommending the setting aside of a final order under Section 145, Cr. P. C. passed by Shri P. K. Das, Magistrate 1st Class, Cuttack, in a criminal miscellaneous case (No. 523 of 1961 ).

( 2 ) THE proceedings were initiated on 28-10-1951 and the affidavits of both the parties were filed on several succeeding dates, and on 284-1962 the learned magistrate wrote in the order-sheet as follows:

"parties present. 1st party filed affidavits ,as per list. No further, acceptance of documents on affidavits. Put up on 5-5-1962 for hearing. The first party has to pay the cost already ordered and unless he pays the cost on next date he has to pay more costs. "

Notwithstanding this clear order he appears to have accepted the affidavit of one kunda Dei which was filed before him on 21-6-1962 on behalf of the 1st party. The order-sheet of that date does not show that the Magistrate applied his mind to the filing of the affidavit by Kunda Dei, though that affidavit was on record. If the magistrate wanted to take further affidavits from the 1st party on that date he should, in fairness, have given the second party also another chance to file further affidavits if necessary after drawing their attention to the filing of the affidavits by kunda Dei. Further adjournments were granted by the Magistrate on the request of the first party to summon the Naib Tahasildar -- the first party having undertaken to pay his travelling allowance and other expenses. But repeated issue of summons on him proved infructuous and at last on 23-11-1962 the Naib Tahasildar appeared before the Court and he was examined as a court witness, cross-examined by the parties and discharged. In the final order of the Magistrate he has relied very much on the evidence of the Naib Tahasildar who has deposed mainly about his personal knowledge of the possession of the first party. Though he is an official witness, it appears that in this proceeding he) merely deposed about what be knew from personal knowledge in his private capacity and did not depose about anything which came to his knowledge while performing his official duties.

( 3 ) THE learned Additional District Magistrate has recommended the quashing of the order on the ground that the Magistrate had no jurisdiction to examine as a witness the Naib Tahasildar because he did not file affidavits in this case.

( 4 ) IT is true that in Keshab Acharya v. Somenath Behera, 24 Cut L T 97 : (AIR 1958 Orissa 79) and to Kalandi Charan Pati v. Udekar Jena, 25 Cut LT 86, this court held that in a proceeding under Section 145, Cr. P. C. a party cannot be permitted to examine as a witness a person whose affidavit has not been put in. This follows as a necessary inference from the language of the proviso to Subsection (4) of that Section, as amended in 1955. In the aforesaid two decisions the power of the Court to summon a witness under Section 540, Cr. P. C. was not considered because the witnesses examined in those cases were witnesses for the parties and not court witnesses. My attention was drawn to a Rajasthan decision reported in Bahori v. Ghure, AIR 1960 Raj 15 which has been followed in a decision of the Allahabad High Court reported in Mirza Mohd. Aziz v. Safdar husain, AIR 1962 All 68, where it was held that the power of the Court to summon and examine a person as a Court witness under Section 540, Cr. P. C. was not in any way affected by the proviso to Sub-section (4) of Section 145, Cr. P. C. see also Bhagwat Singh v. State, AIR 1959 All 763. There is really no conflict between the view expressed in these decisions and the view expressed in the Orissa decisions because in the Orissa cases the power of the Court to examine a person under Section 540, Cr. P. C. did not arise for consideration.

( 5 ) THERE can be no doubt that the power of the Court under Section 540, Cr. P. C. is not in any way controlled by the proviso to Sub-sectio