Ram Gopal vs State And Anr.
1971 Latest Caselaw 47 Del

JUDGMENT

M.R.A. Ansari, J.

1. Upon a report dated 17-6-1966 by the police made to the Sub-Divisional Magistrate, Delhi, to the effect that there was a dispute between the petitioner and the respondent herein with regard to the possession of a latrine which was likely to cause a breach of peace, the learned Magistrate passed an order Under Section 145 (1), Cr.PC directing the parties to the dispute to put in written statements of their respective claims and also to put in any such documents and affidavits upon which they wished to rely in respect of their respective claims. By the same order, the learned Magistrate also attached the subject-matter of the dispute. In pursuance of this order of the learned Magistrate, the parties to the dispute filed their written statements and also filed affidavits and other documents in support of their respective claims. On a consideration of the material on record, the learned Magistrate held that the respondent herein was in possession of the latrine and passed an order Under Section 145 (6), Cr.PC declaring the respondent herein to be entitled to possession of the latrine until evicted there from in due course of law and forbidding all disturbance of such possession until such eviction. Against this order of the learned Magistrate, the petitioner preferred a revision petition before the Additional Sessions Judge, Delhi. One of the contentions raised by him before the learned Additional Sessions Judge was that the learned Magistrate had acted upon documents which were not admissible in evidence. The learned Additional Sessions Judge accepted this contention and has submitted a report to this Court with a recommendation that the order of the learned Magistrate be quashed and that the case be remanded to him for fresh adjudication after allowing both the parties to adduce proper and legal evidence by way of original documents or certified copies of the -judicial proceedings and orders etc. In support of their respective contentions.

2. Apart from the written statements filed by the parties, the evidence adduced by them before learned Magistrate consisted of affidavits and other documents. So far as the affidavits are concerned, the learned Additional Sessions Judge has mistakenly assumed that these affidavits were attested by the Oath Commissioner appointed by the High Court Under Section 139, C. P.C. whereas, as a matter of fact, these affidavits were attested by a Magistrate. Therefore, so far as the affidavits are concerned they do not suffer from any infirmity and they have been properly admitted and acted upon by the learned Magistrate. So far as the other documents are concerned; it would appear that some of them purported to be copies which were attested by the Oath Commissioner. It is contended by the learned Counsel for the petitioner that such documents were inadmissible in evidence even in proceedings under Sec lion 145, Cr.PC In support of his contention, he has relied upon a judgment of a Single Judge of the Madhya Pradesh High Court in State of M. P. v. Swami Prasad, 2nd 1963 Madh Pra 360 and in particular, on the following observations of the learned Judge:

In this connection it has been urged on behalf of party No. 2 that the amend- ment made in Clause (1) of Section 145 of the Code of Criminal Procedure required the parties to. put in such documents in support of their claims along with their written statements as respects the fact of actual possession of the subject of dispute. It was contended that the effect of this amendment was that the documents tendered along with the written statements of the parties were required to be considered without their being proved by any evidence. I am unable to agree with this submission. In my view, the amendments introduced in Section 145 of the Code of Criminal Procedure, do not abrogate the law of evidence except in this respect that after the amendment affidavits filed have to be read as evidence. It will be preposterous to think that the documents tendered by a party with his written statements become entitled to be acted upon without being required to be proved, in the absence of anything being said in Section 145 of the Code of Criminal Procedure suggesting this conclusion. If the documents are public documents which are not required to be proved further, of course, they will be read as evidence but if they happen to be depositions, as is the case before me, though they are public documents, they must be proved and if they have not been proved no other conclusion is possible except to ignore them.

With the greatest respect to the learned Judge, I am unable to agree with his observations. The whole purpose of the amendment to Section 145, Cr.PC by the Amendment Act of 1955 was to obviate the delay in the disposal of the proceedings Under Section 145. Cr.PC by making it unnecessary for the Magistrate to record oral evidence. In this connection, it will be useful to refer to the report of the Joint Committee an extract from which appears at page 650 of the Code of Criminal Procedure by Chitaley and which is as under:

...in a proceeding of this nature, the Magistrate should hold a summary inquiry into the question of possession. He should ask the parties not only to put in written statement of their respective claims but also to produce simultaneously all documentary evidence in support of such claims. If the parties propose to rely on the evidence of any witnesses, they should file the affidavit of such witnesses. It should not ordinarily be necessary for a Magistrate to take oral evidence but he may. if he thinks fit, examine any person whose affidavit has been put in. After taking into consideration the written statements, documents, and affidavits put in and after hearing the parties, the Magistrate should, if possible, come to the conclusion as to who is in possession of the property. To avoid undue delay the Committee consider that a time limit of two months should be fixed within which the Magistrate must dispose of the case.

The whole object of the amendment would be frustrated if the parties are required to prove every document put in by them by examining witnesses. I am fortified in my view by a decision of the Patna High Court in Shah Jamilur Rahman v. Abdul Aziz . The following passage from the reported judgment may be usefully quoted:

Under Act XXVI of 1955, the following words have been added to Sub-section (1) of Section 145; "and further requiring them to put in such documents or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims." Sub-section (4), as amended, provides that the Magistrate should "peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the enquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.

The first point that is absolutely clear from the amendments made is that the intention of the Legislature was that a proceeding Under Section 145 should be concluded as expeditiously as possible. This is the reason why the proceeding is to be concluded, if possible, within two months from the date of appearance of the parties and this is also the reason why the taking of oral evidence, with the delays consequent upon taking of such evidence, has been done away with unless, as provided in the first proviso to Sub-section (4), the Magistrate himself thinks that he should summon and examine any person whose affidavit has been put in.

As the taking of oral evidence even on the question of possession has become optional, the Legislature could not have possibly contemplated that all private documents should be formally proved before the Court. This also appears to follow from the amendments. There are two points which support this conclusion. Firstly, the provision in Sub-section (1) is that the parties are to 'put in' their written statements and also to 'put in' such documents as they rely upon. It is only with respect to affidavits that Sub-section (1) lays down that the parties may be called upon to adduce the evidence of persons upon whom they rely by putting in their affidavits.

Secondly, the provision in Sub-section (4) is that the Magistrate has to peruse the written statements, documents and affidavits. There is nothing in this sub-section to show that the Magistrate can only peruse a document put in by a party if it is formally proved, nor is there anything in it to show that the document must be put in evidence by getting it formally proved.

It seems to me to be manifest, therefore, that a document put in by a party in a case Under Section 145 need not be formally proved before it is considered by the Magistrate. The argument of Dr. Sultan Ahmad that a report is not a document is obviously wrong, because I do not see how a written report can be described otherwise." I am in respectful agreement with these observations of the learned Judge.

3. It is, of course open to the Magistrate before whom the documents are put in by the parties to require the parties to adduce oral evidence in support of the documents, if he feels that he cannot act upon the documents as such. Sub-section (9) of Section 145, Cr.PC enables him to do so. The Magistrate may also require any party to file the original of the document in cases where only a certified copy thereof has been filed by any of the parties. In the absence of the original documents it is open to the Magistrate not to attach any weight to the copy. But it cannot be said that copies of documents cannot be either admitted or acted upon by the Magistrate and that he should in all cases require formal proof of such documents or that he should in all cases require the original documents to be filed. I cannot, therefore, accept the recommendation of the learned Additional Sessions Judge that the case should be remanded to the learned Magistrate for fresh adjudication after allowing both the parties to adduce proper and legal evidence. The learned Additional Sessions Judge is directed to dispose of the revision petition in accordance with law on the basis of the material already on record. Ordered accordingly.