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-