A Civil Court acting under Section 146(1-A) of the Code of Criminal Procedure has the jurisdiction to summon documents and accept fresh affidavits sworn before it in the proceeding.

JUDGMENT :

S.K. Ray, A.C.J.

1. The Petitioners are the members of the first Party in a proceeding u/s 145, Code of Criminal Procedure. That proceeding was in respect of 15.55 acres of land and was initiated in the Court of Sub-divisional Officer, Bhanjanagar and numbered as M.C. No. 150/64.

2. Both the parties to the proceeding filed their affidavits and documents before the Magistrate who referred the matter u/s 146(1), Code of Criminal Procedure to the Munsif, Aska for recording a finding as to which of the party was in possession on the date of the preliminary order.

3. The proceeding before the Munsif was numbered as M.J.C. No. 123/69. The Petitioners filed a petition on 20.12.1969 before him for summoning some of the witnesses, who had sworn their affidavits for the opposite parties, for being examined in Court. That petition is still pending.

Some affidavits of some persons had been filed before the S.D.O. while the proceeding was pending before him, but those, not having been sworn to before the Magistrate having seisin of the 145 proceeding, were not acceptable, on the authority of the decision of this Court reported in Krushna Chandra Naik v. Sk. Makbul and Anr. 1970 C.L.T. 250. Therefore, fresh affidavits from those persons were sworn to before the. Munsif, and a petition was filed on 15.5.1970 for acceptance of those affidavits on behalf of the Petitioners.

The Petitioners again filed an application on 16.5.1970 for summoning certain documents, relevant for their purpose in the case, from the office of the Tahasildar, Aska, as the latter authority had refused to grant them certified copies of those documents.

4. By the impugned order under revision the Munsif rejected both the applications. Further, he held that he had no jurisdiction to summon the documents from the office of the Tahasildar, Aska, inasmuch as his powers were the same as those of a Magistrate u/s 145, Code of Criminal Procedure, and he could not be expected to exercise the powers of a Civil Court. Secondly, he was of the opinion that when Section 146(1-A) enjoined upon him to peruse the evidence on record and to take such further evidence as may be produced by the parties, he was not expected to assist or aid a party in calling for the documents. It was the lookout of the parties to produce the documents.

He also refused to accept fresh affidavits of the witnesses filed before him on the ground that those affidavits had not been sworn to before Magistrate who was in seisin of the matter, but were sworn to in his Court, and that they bore the description at the top for the Court of the Munsif Magistrate, 1st. Class, Aska instead of the description "In the Court of the Munsif, Aska."

5. The first question mooted is, whether the Civil Court acting u/s 146, Code of Criminal Procedure, can be moved for summoning the documents which a party wanted to use as evidence in the proceeding before him.

Sub-section 1-A, of Section 146, Code of Criminal Procedure runs as follows:

On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence and after hearing the parties, decide the question of possession so referred to it.

Sub-section 1-B, of Section 146 makes it quite clear that the decision rendered u/s 146, on a reference by a Magistrate, is a decision of the Civil Court. The proceeding before the Civil Court u/s 146 Is clearly & civil proceeding and all the provisions of the Code of Civil Procedure, by reason of Section 141 thereof would apply to these proceedings. Section 141, CPC is in the following terms:

The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

"All proceedings" referred to in this section would include a proceeding u/s 146, of the Code of Criminal Procedure. Logically, therefore, it stands to common sence