Report No. 37

371. Section 145(1) and suggestion for service of affidavits.-

With reference to section 145(1), the following suggestion1 has been made by a Bar Council.

"Provision should be made for service of affidavits and copies of documents on the opposite side, so that if any counter affidavits are necessary or production of further documents is essential, they may be permitted to be filed; the Magistrate will thereby have a complete picture of the case to enable him to give just decision."

The State Government concerned has opposed the suggestion, as in its view, in the normal course, written statements of the parties are enough, and there is no need for counter affidavits. We agree, in substance, with the State Government's view. No change is therefore necessary.

1. F. No. F. 3(2)/55-L.C., Pt. III, S. No. 52. (pp. 281-282, correspondence).

372. Section 145 and resolution of Lawyers' conference.-

The resolution of a Conference of lawyers1 is as follows:-

"This Conference reiterates its opinion that the party affected by any affidavit presented to the Court for consideration in a proceeding under section 145 of the Code of Criminal Procedure should have the right to subject the person swearing the affidavit to cross-examination, and in that view of the matter this Conference recommends that two provisos be added to sub-section (4) of section 145 of the Code of Criminal Procedure.

"Provided that if the party adversely affected by an affidavit so desires the Court shall summon the person swearing the affidavit for cross-examination", and

"Provided further that in case the person so summoned fails to appear for cross-examination, the affidavit sworn by him shall be excluded from consideration".

This Conference further reiterates the opinion that orders passed under section 145, Criminal Procedure Code should be subject to appeal, and in that view of the matter sub-section (II) be added to section 145, Criminal Procedure Code worded as follows:-

"An appeal shall lie against the order passed by the Court under this section which shall be heard and disposed of in the same manner as is provided in this Act for appeals from order of conviction".

We have considered the matter. We feel, that a right of appeal, as suggested, would unnecessarily prolong the proceedings, and may defeat the object of the law, which is to prevent an imminent breach of the peace. The inquiry into possession is incidental to the proceedings, and should not be prolonged beyond reasonable limits. Nor do we think that an absolute right to cross-examine is desirable, so far as proceedings under section 145 are concerned, so long as the present scheme is maintained.

1. F. 3(2)/55-L.C., Pt. VI, S. No. 271.

373. Section 145(3).- No change is needed in section 145(3).

374. Section 145(4).-

In section 145(4), main paragraph and second proviso, the date of receipt of the police report or other information should be substituted.1

1. Cf discussion regarding section 145(1).

375. Section 145(4)-Third Proviso.-

In section 145(4), third proviso, it should be made clear that the attachment can be ordered at any time after the order under section 145(1) is passed.

376. Section 145(4A) (New).-

We have accepted the suggestion1 of a High Court Judge, to make some provision for looking after the property attached under section 145 in emergencies. Necessary amendment is recommended.2

1. F. 3(2)/55-L.C., Pt. II, S. No. 33(a).

2. See section 145(4A) (proposed).

377. Section 145(5) and restoration.-

A High Court Judge1 has suggested, that it may be provided that where the Magistrate stays further proceedings under section 145(5), he should release the property without restoring any one to possession over it. We are, however, inclined to take a different view. We feel, that in an appropriate case, the Magistrate should have the power to restore possession. It is desirable to amend the section2 so as to make a specific provision to that effect.

1. F. 3(2)/55-L.C., Pt. II, S. No. 33(a).

2. See section 145(5A), as proposed.

378. Section 145(5).-

The provision in section 145(5) that the order shall be "final", need not be disturbed.

379. Section 145(5) and release from attachment.-

Where the proceedings are cancelled under section 145(5), the attachment should, in our view be withdrawn. An amendment to that effect is recommended.1

1. See under section 146(5A), infra.

380. Section 145(5A) (New).-

In section 145, a new sub-section (5A) is proposed to provide for withdrawal of attachment.1

1. See discussion under section 145(5), supra.