An affidavit to be put in under section 145, Criminal Procedure Code, must be sworn before the Magistrate who is dealing with the particular case.

JUDGMENT :

1. This is a reference under section 438, Criminal Procedure Code, arising from proceedings under section 145, Criminal Procedure Code. The only question for determination is whether affidavits sworn by witnesses and parties to proceedings under section 145, Criminal Procedure Code before a Magistrate other than the Magistrate who took cognizance of the proceedings under section 145, can be read in such proceedings. The question has arisen in these circumstances.

2. Jamuna Prasad (hereinafter called party No. 1) moved Sub-Divisional Magistrate, Sakti, under section 145, Criminal Procedure Code, that the house in dispute was in his exclusive possession and that Triveni Prasad, his wife, Mst. Premabai, and his son, Ram Shankar (together hereinafter called party No. 2), forcibly took its possession and that there was an apprehension of breach of the peace. Party No. 2 denied the allegations and alleged that party No. 1 was not in exclusive possession of the house, and that the house was in joint possession of party No. 1 and party No. 2, and further that there was no apprehension of breach of the peace. Statements, affidavits and documents were put in by the parties. The Sub-Divisional Magistrate held that party No. 1 was in exclusive possession of the house in dispute and made an order restraining party No. 2 from interfering with his possession.

3. The affidavits of Ramkumar and Mst. Gomtibai, which were filed on behalf of the first party and relied on by the Sub-Divisional Magistrate had been sworn before the Magistrate 1st Class, Sakti, who was not concerned with the proceedings, and not before the Sub-Divisional Magistrate himself.

4. Aggrieved by the order passed by the Sub-Divisional Magistrate, party No. 2 filed a revision. The learned Additional Sessions Judge, Bilaspur, has held that as the affidavits were not sworn before the Sub-Divisional Magistrate, though sworn before another Magistrate, they could not be read as evidence. In his opinion, those affidavits must be excluded from consideration and since there remains no evidence in support of the case of party No. 1, his recommendation is that the order of the Sub-Divisional Magistrate must be set aside.

5. Before the Amendment Act No. 26 of 1955, if the Magistrate was satisfied that a dispute concerning land, etc., existed and it was likely to cause breach of the peace, he was to make an order under section 145 (1), Criminal Procedure Code, requiring the parties to attend the Court and put in written statements of their respective claims as respects the fact of actual possession. After receiving the written statements, he was required under sub-section (4) to peruse the statements, hear the parties, receive all such evidence as was produced by them, consider the effect of such evidence, take further evidence, if he thought necessary, and then decide which of the parties was at the date of the order in such possession. In order to obviate delay consequent upon taking of oral evidence, the section was amended in 1955. Now, sub-section (4) requires the parties to file not only written statements but also to put in documents and to adduce evidence by putting in affidavits of such persons as they rely upon in support of their claims. To put it differently, affidavits of persons conversant with the matters in dispute have taken the place of oral evidence under the amended section. The section, however, does not prescribe any particular mode for the affidavits to be sworn. It is to be seen which authority would be competent to administer oath to the deponent of such an affidavit.

6. I would first examine the various provisions contained in the Code of Criminal Procedure pertaining to affidavits. Section 539 of the Code applies only to such affidavits as are to be used in the High Court or before any officer of such Court. That section is, therefore, not relevant. The marginal note of section 539-AA is “authorities before whom affidavits may be sworn”. When an affidavit