ORDER :- This application in revision has arisen out of proceedings under section 145 Cr. P. C. in the court of sub-Divisional Magistrate, Bharthana in the district of Etawah. The dispute was in respect of some land which originally belonged to one Shri Ram, who died on 13th November, 1959. During his lifetime he made a gift of this land in favour of Arya Pratinidhi Sabha under a document which is dated 31st July, 1946 but which was registered on 26th September, 1946. After the death of Shri Ram, differences arose as to the ownership of this land and the Arya Pratinidhi Sabha claimed it on the basis of the gift deed in its favour. The present applicant Govind claimed it as the nearest heir of Shri Ram, being his nephew.

2. A case under section 145 is to be decided on the basis of possession of dates relevant for purposes of the inquiry under that section. Both the parties filed affidavits in support of their respective contentions and relied upon documentary evidence as well. It was on a consideration of this evidence that the Magistrate recorded a finding that the Arya Pratinidhi Sabha was in possession over the land in dispute as also over the attached crop on the date of the preliminary order and also two months prior to the same and this finding has been affirmed by the Sessions Judge.

3. Normally a finding of fact recorded by a Magistrate in proceedings under section 145 of the Code of Criminal Procedure is not interfered with in revision as the accused party has a remedy under sub-section (6) of section 145, Cr. P. C. In this particular case, however, it appears that the Magistrate has relied upon evidence which could not be admitted in evidence as such, and it was urged that the finding recorded by the Magistrate is vitiated on that account. The contention was that Shri Arya Bhasker filed an affidavit on behalf of the opposite party, which affidavit was verified by an Oath Commissioner, and that an affidavit verified by an Oath Commissioner could not be received in evidence under Section 145, Cr. P. C. and reliance for this purpose was placed upon Wahid v. State, AIR 1963 All 256. In that case an affidavit was verified by an Oath Commissioner who was appointed by the High Court under section 539 of the Code of Criminal Procedure, and it was held that that affidavit could not be taken in evidence in proceedings under Section 145, Cr. P. C. In this case the affidavit has not been verified by an Oath Commissioner appointed by the High Court under Section 539, but by an Oath Commissioner at Etawah, who must in all probability have been appointed by the District Judge there. The question for consideration in this case, therefore, is whether the affidavit which was not verified by the Magistrate himself but by an Oath Commissioner, could be received in evidence.

4. Section 539-AA, sub-section (1), provides that an affidavit to be used in any court other than a High Court either under section 510-A or Section 539-A may be sworn or affirmed in the manner prescribed in Section 539, or before any Magistrate. Section 539-A refers to an affidavit in proof of the conduct of public servants in certain inquiries, and hence, it has no bearing on the facts of the present case. We are then left with affidavit to which reference is made under sub-section (1) of section 510-A of the Code. It reads:

"(1) The evidence of any person whose evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions be read in evidence in any inquiry, trial or other proceeding under this Code." An affidavit verified by an Oath Commissioner could, in my view, be read in evidence in proceedings under Section 145 of the Code in which evidence by affidavit is permissible, even though the affidavit is verified by an Oath Commissioner, but in order that the section may apply, the evidence should be merely "of a formal character". It is only in such cases, that is, where the evidence which is required to be led in a case is of a fo

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