M.P Verma, J.:— Both these cases have been heard together, because in both of them the same Point of law has been convassed before us. This judgment will therefore, govern them both.

2. Criminal Revision No. 1812 of 1969 came up for hearing before the Hon'ble Mr. Justice Kanhaiyaji, and his Lordship referred the case to a Division Bench. Similarly, Criminal Revision No. 118 of 1970 was placed for hearing before the Hon'ble Mr. Justice C.P Sinha and he referred the case to a Division Bench. The learned Judges found that there was conflict of opinion concerning the disputed point amongst various High Courts and so they thought it desirable that a Division Bench of this Court should decide the matter. The main question in both these cases is, whether the affidavits which are filed in a proceeding under Section 145 of the Code of Criminal Procedure should be sworn before the Magistrate who is in seisin of the proceeding, or before any other Magistrate and then put in before the Magistrate who had to decide the proceeding. I would, therefore, briefly refer to the facts of the two cases and then come to the discussion of the legal point.

3. Criminal Revision No. 1812 of 1969:

4. The Magistrate has declared the possession of the members of the second party and so members of the first party are petitioners before this Court. The area in dispute is 3.90 acres (4 bighas and 6 dhurs), comprised within plot no. 12, khata no. 851, tauzi no. 6877, situate in village Paroo in the district of Muzaffarpur. There are seven persons constituting the members of the first party. Petitioners 1, 2, 3 and 5 claims 2 bighas 5 kathas and 6 dhurs, petitioner no. 4 claims one bigha and petitioners 6 and 7 claim 15 kathas. Their case, in short, is that these lands were recorded as bhaoli in the name of Mahanth Chhakan Puri, and the landlords were Bishundeo Narain Singh and Lakshmi Narain Singh. Their estate was in thicca with Karanwari Kothi. In 1896, Chhakan Puri surrendered plot no. 12 to Karanwari Kothi. In 1899, the Kothi settled 15 kathas with Prayag Lal Choudhary (ancestors of petitioners 6 and 7). In 1908 the landlord settled 2 bighas 5 kathas 6 dhurs with the ancestors of petitioners 1, 2, 3 and 5. Petitioner no. 4 claims one bigha of land by purcha from the heirs of Lachhuman Kurmi.

5. The case of the members of the second party—opposite party is that the disputed lands belonged to Chhakan Puri, who never surrendered these lands to the landlord; Chhakan Puri died and his Chelas, Gena Puri and Sheok Puri, succeeded him. On 18th October, 1951, Gena Puri sold the land to the members of the second party under a registered sale deed. Thereafter the rent was converted into naqdi by Bishundeo Narain Singh, and the possession of the members of the second party continued.

6. A proceeding under Section 144 of the Code of Criminal Procedure was started on 24th April, 1963 which was converted into a proceeding under Section 145 of the Code of Criminal Procedure on 14th June, 1963 and the lands were attached. By his order dated the 24th August, 1964, Shri P.N Das, Magistrate, First Class, found possession of the members of the second party. Then, there was a criminal revision before the learned Sessions Judge, and he, by his order dated the 23rd November, 1964, refused to refer the matter to this Court. Then the members of the first party filed Criminal Revision No. 313 of 1965 in this Court. On 20th December, 1966, the order of the learned Magistrate was set aside and the case was remanded with certain directions. On this occasion, Shri R.K Roy, Magistrate, heard the case on a number of days. On the 29th April, 1969, he passed an order finding the possession with the members of the second party. It is said that in his previous notes which he had recorded in the order-sheet from day to day he was expressing opinion in favour of the members of the first party. It is against this order that the present Criminal Revision No. 1812 of 1969 has been filed in this Court by the members of the first party.

7. Criminal Revision No. 118 of 1970:

8. The disputed lands in this case lie in three villages, (i) the Khajuri, (ii) Sijhaul and (iii) Bekua. The lands in village Khajuri measure 1 bigha 8 kathas 8 dhurs; in village Sijhaul the lands are 14 kathas 17 dhurs, and in village Bekua the lands measure 14 bighas 18 kathas, making a total of 16 bighas 15 kathas and 5 dhurs. At first there were two proceedings started under Section 144 of the Code of Criminal Procedure, one on 22nd November, 1967 and the other on 4th December, 1967. Both these proceedings were converted into one under Section 145 of the Code of Criminal Procedure by orders dated the 17th January, 1968 and 1st February, 1968. Later on, both the proceedings were amalgamated and they were sent to Shri S.N Prasad, Magistrate, First Class, Madhubani, who found the possession with the members of the first party. The members of the second party have, therefore, come up to this Court. These lands originally stood recorded as “Batai”. The allegation is that these lands were surrendered by the recorded tenants and resumed by the landlord, who later on settled the lands with the ancestors of the parties. Some of them also claim only portions of the disputed land by purchase.

9. In both these cases the main point convassed before us is whether the orders of the courts below are vitiated because the affidavits which were put in these two cases had been sworn before another Magistrate who had nothing to do with the proceedings under Section 145 of the Code of Criminal Procedure. In Criminal Revision No. 1812 of 1969 it is said that not a single affidavit was sworn or re-affirmed before the trying Magistrate. Similarly, in Criminal Revision No. 118 of 1970, it is said that no affidavit of the members of the first party was sworn before the trying Magistrate. On behalf of the members of the second party 30 affidavits had been filed out of which only 7 affidavits had been sworn before the trying Magistrate and the rest were sworn before another Magistrate.

10. It is to be noted that a proceeding under Section 145 of the Code of Criminal Procedure is an important proceeding in a criminal court. The decision of the Magistrate in such proceedings is binding on the parties concerning possession over immovable property, unless the order is set aside by a Civil Court. In Sub-section (1) of Section 145 of the Code of Criminal Procedure, the words are:

“….requiring the parties concerned in such dispute to attend his court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute [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 claim.]” (The words under bracket were inserted by the Amending Act 26 of 1955).

11. Before the amendment, the parties had to adduce oral evidence by examining witnesses, but by the Amending Act, they have now to adduce evidence of such persons by putting in their affidavits. It is, therefore, clear that affidavits have now taken the place of oral evidence. Sub-section (4) of Section 145 further requires that the Magistrate “shall then……..peruse the statements, documents and affidavit, if any to put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him………” So, the Legislature wants that the affidavits so put in shall have to be perused, that is, critically examined.

12. Affidavits cannot be lightly treated in a proceeding under Section 145 of the Code of Criminal Procedure. As observed by K. Sahai, J. in (1) Shah Jamilur Rahman v. Abdul Aziz (A.I.R 1960 Patna 240), it is wrong to think that it is not necessary to consider the affidavits. It is also improper to dispose of the affidavits merely by saying that they are oath against oath. The Magistrate should consider the affidavit of each deponent and should give the reasons for accepting or not accepting it. Non consideration of affidavits will vitiate the Magistrate's judgment. Similar views were expressed by the same learned Judge in the case of (2) Rudra Singh v. Bimla Devi (A.I.R 1960 Patna 505). In the same volume there is another decision of Kanhaiya Singh, J. in (3) Arjun Singh v. Singeshwar Chaudhary (A.I.R 1960 Patna 513), wherein it was remarked that the Magistrate must consider the affidavits and give reasons for accepting the affidavits of one or the other party.

13. A Division Bench of this Court, in (4) Sahdev Mandal v. Honga Murmu (A.I.R 1967 Patna 223), observed that, under the new law, affidavits are sworn by the parties and filed, instead of examination of witnesses on oath, and, therefore, the Magistrate must apply his mind to the affidavits. In that case there was no discussion in the order of the Magistrate to show that he applied his mind to the affidavits, and, in the opinion of their Lordships on that ground alone the petitioners were entitled to succeed. The revision application was, therefore, allowed, the order of the Magistrate was set aside and the case was sent back for a fresh decision in accordance with law So, the importance of affidavits cannot be minimised.

14. The question then arises as to in what manner these affidavits should be sworn. In Section 145 of the Code of Criminal Procedure no procedure concerning the matter has been laid down, but it is simply stated that the parties will put in their affidavits. We have, therefore, to look to other provisions of the Code of Criminal Procedure to find out whether there is any such indication.

15. Chapter XLI of the Code of Criminal Procedure deals with “Special Rules of Evidence”. Section 510A reads as follows:—

“510A(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.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.”

16. It is, therefore, clear that even this section does not say as to before which Magistrate the affidavits in a proceeding under Section 145 of the Code of Criminal Procedure have to be sworn. We have then to refer to Section 539 which states:

“Affidavits and affirmations to be used before any High Court or any office of such court may be sworn and affirmed before such court or the clerk of the State, or any Commissioner or other person appointed by such court for that purpose……..”

17. So, this section also does not render any help concerning the affidavits which are to be filed before, and used by a Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure. Section 539A and Section 539AA which were substituted for the old Section 539A by the Amending Act 26 of 1955, may be read in this connection. Section 539A(1) refer to a case where allegations are made respecting any public servant, and in such circumstances evidence may be given by affidavits. Sub-section (2) of Section 539A lays down that affidavits under this section shall state separately such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true. So, this section also does not assist. Then I come to Section 539AA. The heading of this section reads “Authorities before whom affidavits may be sworn”. Sub-section (1) of this section states:

“(1) An affidavit to be used before any court other than a High Court under Section 510A or Section 539A may be sworn or affirmed in the manner prescribed in Section 539 or before any Magistrate.”

18. I have already shown that Section 539 and Section 539A have no direct bearing on the point which is being agitated in this case. So, we are left with the choice of Section 510 only. But Sub-section (1) of Section 510A lays down:

“(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 proceedings under this Code.”

19. If it is of a formal character, then, according to Section 539AA, it may be sworn or affirmed before any Magistrate. It is important to note that in Section 539AA there is no reference to affidavit under Section 145 of the Code of Criminal Procedure. This clearly implies that an affidavit under Section 145 cannot be sworn or affirmed before a Commissioner or Oath Officer appointed by the High Court. A general examination of the provisions of various sections of the Code of Criminal Procedure would indicate that affidavits are required to be filed under Sections 145, 510, 526 and 539A of the Code of Criminal Procedure. Section 526 comes into play when it is for the transfer of a case by the High Court. For such a case the affidavit can be sworn in the manner laid down in Section 539, Section 539A as already indicated, speaks of an affidavit in support of an application containing allegations against any public servant. Section 510A speaks of affidavits with respect to evidence of a formal character. In view of the wordings of Section 539AA, such affidavits can be sworn in the manner prescribed in Section 539. In other words, such affidavits can be sworn before an Oath Commissioner or Oath Officer appointed by the High Court. Had the Legislature thought that affidavits under Section 145 of the Code of Criminal Procedure were also to be sworn in the manner prescribed under Section 539. I think, provisions similar to the provisions relating to affidavits under Sections 510 A and 539 A would have also been inserted by adding Section 145 in Section 539 AA. So, an affidavit can be sworn before any Magistrate if the contents thereof are of a formal character by the use of the word “formal” the Legislature clearly indicated that there were affidavits of “informal”, “real” or “substantive” character also. The argument, that such affidavits are of a formal character and when the deponent thereof is examined as a witness in court his evidence becomes real or substantive, must be repelled, because in that case practically all the proceedings under Section 145 of the Code of Criminal Procedure would be said to have been decided on formal evidence only. It is rarely that a witness is now examined in proceeding under Section 145 of the Code of Criminal Procedure. So, the entire burden of interpretation depends on the question whether the affidavits filed in a proceeding under Section 145 of the Code of Criminal Procedure can be said to be of a formal character. In my opinion, it cannot be so classed. By such affidavits the rights of the parties concerning possession over immovable property are determined and the decision arrived at in a proceeding under Section 145 may be binding on the parties for all times to come, unless aside by a competent civil court. Even on general interpretation affidavits which are to be used by a Magistrate ought to be sworn before him. A question may be posed as to what would be the affidavit is that which does not affect the rights of the parties. Suppose; the name of a student is Prabhat Nath Verma and he wants to change his name into Prabhat Kumar Verma. In such circumstances he can file his affidavit changing his name before any Magistrate. Similar may be the case when a man wants to change the date of his birth. If an affidavit to be filed before a Magistrate who is in seisin of a proceeding under Section 145 of the Code of Criminal Procedure were to be sworn before any Magistrate the consensus of opinion of various High Courts is that such affidavits are not properly sworn and could not be taken into evidence. Such view was taken by Kailash Prasad, J. in (5) Wahid v. State (A.I.R 1963 Allahabad 256). In that case, his Lordship observed that the affidavits put in by Wahid and Zahid (second party) were inadmissible in evidence as they were not properly sworn, inasmuch as they had been sworn before a Special Magistrate.

20. In (6) Govind v. State (A.I.R 1969 Allahabad 405) S.D Singh, J. held that, if the evidence is not of a formal character, Section 510 A will not apply and the affidavit will have to be verified by the Magistrate himself under Sub-section (1) of Section 539 AA. In that case it was found that the affidavit in question, which was verified by an Oath Commissioner, was not of a formal character, and hence was inadmissible in evidence. Similar views have been expressed in the case of (7) Hemdan v. State of Rajasthan (A.I.R 1966 Rajasthan 5). In that case, C.B Bhargava, J. observed that evidence in proceedings under Section 145 of the Code of Criminal Procedure regarding possesion of immovable property is not of a formal nature, but is of a substantive nature, and thus Section 510 A cannot be invoked so to make Section 539 A applicable in the case of affidavits filed in proceedings under Section 145. While dealing with the effect of Section 4 of the Oaths Act, his Lordship observed that it was the Sub-divisional Magistrate before whom the proceedings were pending, who had a duty to decide the dispute and to receive evidence in the proceeding. The affidavits could, therefore, be sworn by him or by an officer empowered by him in this behalf, and not by any other Magistrate. His Lordship further referred to the case of (8) Nandalal Ghose v. Emperor (A.I.R 1944 Calcutta 283), where the affidavit by the accused in a criminal proceeding was sworn before a First Class Magistrate who had no jurisdiction to take evidence in the matter in respect of which the accused was prosecuted. It was held that the accused could not be prosecuted under Sections 193 and 199 of the Indian Penal Code for filing a false affidavit on oath because the First Class Magistrate, before whom the affidavit was sworn, had no authority under Sections 4 and 5 of the Oaths Act to administer oath on the matter. Therefore, under Section 4 of the Oaths Act also the Magistrate, Third Class, Bhinmal had no authority to administer oath to person whose affidavits were filed before the Sub-divisional Magistrate, Jalore in proceeding under Section 145 of the Code of Criminal Procedure. The case was then remanded to the learned Magistrate to decide it afresh after proper affidavits were filed before him.

21. In a recent case of the Orissa High Court, in (9) Krishna Chandra Naik v. Sk. Makbul (A.I.R 1970 Orissa 209), G.K Misra, C.J and S.K Ray, J. came to the conclusion that “affidavits which are to be used in a proceeding under Section 145, Criminal Procedure Code, must be sworn to before the Magistrate before whom such proceeding is pending, unless the evidence of a person is of a formal character in which case that evidence may be given by affidavits sworn to before any other Magistrate”. Their Lordships agreed with the views expressed in the two Allahabad cases and the Rajasthan case, referred to above. Their Lordships further came to the conclusion that a Magistrate having seisin over a proceeding has no power to authorise any other Magistrate to take affidavits intended to be used before him because the Magistrate so authorised would not be a person who could be deemed to have been validly authorised to administer oaths and affirmations which are quite unrelated to any matter pending before him. This observation was made after interpretation of Section 4 of the Oaths Act. According to their Lordships, under Section 4 of the Oaths Act, courts and persons referred to must have connection with the matter to which the affidavits related and must be discharging their duties or exercising their powers in connection therewith.

22. In this Court also, similar view has been taken by B.P Sinha, J. in (10) Mahendra Prasad Sinha v. Bhagirath Lal (Criminal Revision No. 1542 of 1970, decided on the 8th December, 1970). His Lordship's conclusion is given in Paragraph 20 of the judgment thus:

“20. Therefore, the affidavits, which were verified by a Magistrate, who was not in seisin of the proceeding at the time the affidavits were sworn, were not admissible and they should not have been read as evidence in the instant proceedings”.

23. Learned counsel has drawn our attention to the fact that, against this order of B.P Sinha, J., the party aggrieved had gone to the Supreme Court, but the application for special leave to appeal to the Supreme Court was dismissed on merits on 20th January, 1971, in Petition No. 89 of 1971.

24. I may point out that all the courts referred to above, which had occasion to decide this point, found that the provision of the Oaths Act did not apply when another Magistrate got the affidavits sworn before him concerning a proceeding which was pending before another Magistrate.

25. Some other High Courts have expressed a contrary view also. In (11) Ahmad Din v. Abdul Salem (A.I.R 1966 Punjab 528) H.S Narula, J. was considering whether the Oath Commissioner appointed under Section 139(b) of the Code of Civil Procedure was competent to allow affidavits to be sworn before him in relation to a proceeding under Section 145 of the Code of Criminal Procedure. The attention of his Lordship was drawn to the two Allahabad cases referred to above where it was held that an affidavit under Section 145 of the Code of Criminal Procedure cannot be sworn or affirmed before Commissioner or Oaths Officer appointed by the High Court, and his Lordship said “I am in full agreement with the judgment of the Allahabad High Court to that extent”. But his Lordship further observed that Kailash Prasad, J. of the Allahabad High Court, however, further proceeded to hold that affidavits which had to be filed in a proceeding under Section 145 of the Code of Criminal Procedure could be sworn by the Magistrate before whom the proceeding is pending decision. “This is no doubt true. But this does not debar any other competent Magistrate from allowing an affidavit to be sworn before him.” His Lordship did not fully agree with the views expressed by the Rajasthan High Court in the case reported in (7) A.I.R 1966 Rajasthan 5. However, in this case also the revision petition was allowed and the order of the Sub-divisional Magistrate was set aside, allowing the parties to have an opportunity to file proper affidavits or to lead other evidence in place of the defective affidavits and then to decide the proceeding under Section 145 of the Code of Criminal Procedure on a consideration of legal evidence alone and by excluding the affidavits sworn before the Oath Commissioner.

26. In (12) Leitanthem Bidhu Singh v. Khangirakpem Ibobi Singh (A.I.R 1968 Manipur 3), the learned Judicial Commissioner was not prepared to give any restricted meaning to the expression “having authority to receive evidence”. In Section 4 of the Oaths Act, in his view, Section 10A of the Code of Criminal Procedure which was inserted by the Amending Act of 1955, is the general Section which applies to all such formal affidavits filed in any inquiry or trial or other proceedings under the Code of Criminal Procedure, with great respect to the learned Judge, I cannot persuade myself to accept this observation. It is difficult for me to hold that the affidavits which are filed in a proceeding under Section 145 of the Code of Criminal Procedure concerning possession over immovable property can be said to be of “formal” nature.

27. In the case of (13) Shambhunath Chopra v. State (A.I.R 1970 Delhi 210), S. Rangarajan, J. also followed the Punjab and Manipur decisions and expressed disagreement with the Rajasthan and Allahabad decisions. His Lordship observed that he could find no impediment at all in the matter of reading the expression “formal” in such manner as it would subserve the main purpose of the amendment which was brought into the Statute Book by Act XXVI of 1955. In other words, as has been argued before me by learned counsel appearing on behalf of the opposite party in the cases in hand the amendments in Section 145 of the Code of Criminal Procedure were brought with a view to dispose of such proceedings speedily. It is further said that, if it is insisted upon that the affidavits must be sworn before the Magistrate who is in seisin of the proceeding, then it will give rise to some delay in the disposal of the proceeding, because, if a deponent was living in Calcutta or Delhi, he will have to come to the place where the proceeding is going on. Though in Section 145 of the Code of Criminal Procedure, the time limit of two months has been given, it is a matter of common experience that proceeding like these are never terminated within two months. Theory is something else than practice. In my opinion also there should be harmonious interpretation of the language of a statute, provided the word or the expression can be used in two meanings, that is, if they are equivocal. But presently there is no such case. There is no ambiguity or equivocalness as regards the expression “formal” in Section 510A of the Code of Criminal Procedure. The argument that the view that I am going to take would cause some dislocation in various proceedings under Section 145 of the Code of Criminal Procedure, in which affidavits sworn before a Magistrate other than the Magistrate in seisin of the case have been filed, cannot appeal to me. If there is an irregularity, it should be stopped. At least in all future cases the law would be logically and systematically followed and then there would be no difficulty. Moreover, all those cases will not have to be dismissed on that ground, but they will have to be sent back to the trying Magistrate to re-affirm those affidavits which were sworn before other Magistrate and then consider them as good evidence in the case.

28. In view of the discussions made above, and in agreement with the views of the majority of the High Courts in India, I am of the opinion that the affidavits which are to be put in before a Magistrate who is dealing with the proceeding under Section 145 of the Code of Criminal Procedure must be sworn before him. In the cases in hand, as indicated earlier, not a single affidavit was sworn before, or re-affirmed by, the trying Magistrate in Criminal Revision No. 1812 of 1969. In Criminal Revision No. 118 of 1970, no affidavit of the first party was sworn before the trying Magistrate and only 7, out of 32, affidavits of the second party were sworn before the trying Magistrate. In consequence, the impugned order of the Magistrates in the two cases, which were based on a consideration of the aforesaid affidavits, cannot be upheld and must be set aside as having been passed not on good and legal evidence, I, however, do not want to enter into the merits of the two cases, in view of the order that I propose to pass, otherwise any party may be prejudiced by any such observation.

29. In the result, both the revision applications are allowed, the impugned orders of the Magistrate concerned are set aside and the two cases are sent back to them for fresh decision in accordance with law and in the light of the observations made above, that is, all the affidavits which are to be used by the respective Magistrates must be sworn before or re-affirmed by them. The Magistrates will give opportunities to the parties to get the affidavits either sworn or reaffirmed before them.

30. A.N Mukharji, J.:— I agree.

Applications allowed.