Affidavits to be used in a proceeding under Section 145, Criminal Procedure Code must be sworn to before the Magistrate before whom such proceeding is pending, unless the evidence of a person is of a formal character in which case that evidence may be given by affidavits sworn to before any other Magistrate.

RAY, J.

( 1 ) THE Criminal Reference has been referred to a Division Bench by OUT learned brother R. N. Misra, J. , for an authoritative decision on the question as to whether affidavits for utilisation in a proceeding under Section 145, Criminal Procedure code should be sworn before the Magistrate before whom the proceeding is pending, or another Magistrate as authorised by the trying Magistrate, and affidavits which are not sworn to before these authorities are not available to be looked into in such proceeding. In the proceeding tinder Section 145, out of which this reference arose, the parties swore some of their affidavits before the officer-in-charge of the current duties of the S. D. O. in whose Court the Section 145 proceeding was pending during the latter's absence and before another first class Magistrate who had no seisin over the proceeding. The S. D. O. relied upon these affidavits along with others in disposing of the case under Section 145, Criminal Procedure Code before him. The additional Sessions Judge, Balasore, thereupon made a reference to the High court for setting aside the order of the S. D. O. on the ground that the affidavits which were not sworn to before the S. D. O. who had actual seisin of the matter to which the affidavits related, should have been discarded from consideration.

( 2 ) THE Criminal Revision was also referred to the Division Bench by our learned brother, Patra, J. , for an authoritative pronouncement on the point whether an affidavit sworn before a Magistrate other than the Magistrate before whom a proceeding under Section 145, Criminal Procedure Code was pending can be utilised for deciding the dispute in the said proceeding.

( 3 ) THE amplitude of the questions posed by Misra, J. , is larger than the question posed by Patra, J. Misra, J. , posed two questions, viz. , (i) whether the affidavit sworn to before a Magistrate other than the trying Magistrate can be utilised in the section 145 proceeding as evidence, and (ii) whether affidavits filed before another Magistrate who is authorised by the trying Magistrate to take such affidavits can be utilised in the Section 145, proceeding. The first question is common both to the Reference and the Revision. The second question posed by misra, J. , does not strictly arise out of the reference before him, because, in that case the S. D. O. before whom the Section 145 proceeding was pending never authorised any other Magistrate to take affidavits and that the impugned affidavits were not sworn to before any Magistrate so authorised. This part of the question may be disposed of at once. There does not appear to be any provision in the Criminal Procedure Code which empowers a Magistrate having seisin over a proceeding under Section 145, criminal Procedure Code to authorise any other Magistrate to take affidavits which may be utilised in the proceeding. Section 539, Criminal Procedure Code deals with the subject-matter of user of affidavits before a High Court and permit swearing of such affidavits and affirmations before such Court and other persons and authorities enumerated therein including any person appointed by the High court. The power to authorise another person to take affidavits is conferred expressly on the High Court by this section. Apart from this provision, there are no other sections in the Code which vest a Magistrate with the power to authorise another Magistrate to take affidavits in relation to a matter pending before him. Section 4 of the Indian Oaths Act authorises all Courts having by law authority to receive evidence either to administer oaths themselves or empower any officer to administer such oaths. In pursuance of this section the Magistrate can empower an officer obviously of his Court and subordinate to him, to administer oath. This cannot be construed as authorising a Magistrate to empower another Magistrate, which is also a Court, to administer oaths and affirmations, which is his primary functions in relati