Judgment

Narasimham, C J

[1] This is a reference by the Sessions Judge of Mayurbhanj for setting aside an order under Section 145, Criminal P. C., passed by a First Class Magistrate of Udala,

[2] The learned Magistrate drew up the proceeding under Section 145, Criminal P. C., on the 8th December 1956. On the 31st December 1956 both parties filed written statements and affidavits as permitted by the recent amendment to Section 145, Criminal P. C. The learned Magistrate heard the Pleaders for both parties on the 18th January 1957 and passed the following order:

"Heard Pleaders of both parties. But I am not satisfied in respect of the possession over the suit land, of either party. Let the first party come with all evidence, oral and documentary, on the 8th February 1957."

On the 20th March 1957 five witnesses were examined for the first party and on the 11th May 1957 four witnesses were examined for the second party. Then, on the 29th May 1957 the learned Magistrate declared the first party to be in possession of the disputed property.

[3] The Sessions Judge in his referring order has pointed out that the learned Magistrate committed an illegality in examining witnesses Nos. 1, 4 and 5 of the first party and witnesses Nos. 1, 3 and 4 of the second party inasmuch as they had not put in their affidavits in support of the respective claims of either party, as required by Sub-section (1) of Section 145, Criminal P. C. According to the Sessions Judge the first proviso to Sub-section (4) of Section 145 authorises the Magistrate to summon and examine only those persons whose affidavits have been put in and the examination of persons who have not put in their affidavits would be illegal.

He relied on a recent decision of the Mysore High Court, Dodda Revenna v. T.V. Narayana Murty, 1957 AIR(Mys) 43, where the aforesaid view was taken and it was further observed that the words "hear the parties" occurring in Sub-section (4) of Section 145, Criminal P. C., would mean "hear the arguments of parties" and would not include taking the evidence of the parties if they desire to appear as witnesses.

[4] Mr. Ram who opposes the reference, fairly conceded that the learned Sessions Judge was right in observing that by virtue of the first proviso to Sub-section (4) of Section 145, Criminal P. C., only those persons who had filed affidavits could be examined as witnesses. But he urged that the words "hear the parties" occurring in the main portion of Sub-section (4) of Section 145 are wide enough to include taking the evidence of the parties themselves, if they desire to appear as witnesses, and that consequently even though the evidence of witnesses 1, 4 and 5 of the first party and 1, 3 and 4 of the second party may be ignored as inadmissible the learned Magistrate was justified in coming to his conclusion on the evidence of the parties who deposed before him.

[5] The main question for decision, therefore, is whether the words "hear the parties" occurring in Sub-section (4) of Section 145, Criminal P. C., would include taking the evidence of the parties even though they might not have chosen to file affidavits on their behalf. I think that on this point also the Mysore decision is a clear answer to Mr. Ram's contention. In Sub-section (4) of Section 145, Criminal P. C., as it stood before the recent amendment, after the words "hear the parties" there were found the words "receive all such evidence as may be produced by them respectively".

These latter words have now been omitted and in the first proviso to Sub-section (4) of Section 145 the examination of witnesses whose affidavits have been filed, alone has been provided. If the examination of the parties themselves as witnesses was also permissible even though they had not filed affidavits, the proviso would have been drafted differently. If the parties want to give evidence on oath, there is no legal bar to their filing affidavits along with the affidavits of the witnesses, as permitted by Sub-section (