ORDER
G.K. Misra, J.
1. The second party is the petitioner. The facts relevant to the point in issue may only be stated Parties filed documents and affidavits in a proceeding under Section 145 Cr.P.C. On 4-2-66 opposite parties (first party members) proved some of their documents through witnesses. On 24-2-66, they proved some more documents through one Fakir Charan Mohanty who did not file any affidavit also. After his examination in chief was over, the petitioner cross-examined him with regard to the documents and merits. The learned magistrate allowed cross-examination with regard to documents, but not on merits Against this order, the revision has been filed.
2. The learned magistrate was aware of the position that cross-examination need not be confined only to matters brought out in examination in chief. He was, however, of opinion that as Fakir did not swear any affidavit he could not depose with regard to merits, and as such could not be cross-examined on merits. The aforesaid view requires close examination.
3. There is sharp controversy on the question as to whether a witness, who did not file any affidavit, can give evidence orally. So far as this Court is concerned, a consistent view has been taken that he cannot give oral evidence (see 32 Cut LT 256= (AIR 1966 Ori 170), Raghunath v. Purnachandra). It was observed in para 4 of the judgment thus–
‘The evidence of a witness who has not filed any affidavit should be excluded from consideration This Court has consistently taken the view on the basis of Section 144(4), first proviso, Cr P. C that the evidence of a witness is inadmissible unless his affidavit has previously been put in.
Thus there cannot be any dispute, so far at this Court is concerned The view has been taken that Fakir could not have been examined in chief as to the merits of the case as he had not filed an affidavit.
4. There has been no decision of this Court or any other Court as to whether a witness can be examined-in-chief to prove documents even though he did not file any affidavit. This question would be examined in an appropriate case Here Fakir had already been allowed to depose without filing affidavit
5. On the assumption that he could so depose, the question is whether cross-examination on merits can be refused in my view the provision of Section 138, Evidence Act is mandatory and cross-examination or re-examination cannot be refused. It is, however, altogether a different thing to hold that the witness cannot be permitted to be examined even to prove documents when he filed no affidavit
6. Section 138. Evidence Act, so far at is relevant, runs thus–
‘The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
The learned Magistrate should not have refused cross examination by the petitioner as to the merits of the case, once he allowed the witness to prove documents without his filing affidavit.
7. The result of the aforesaid analysis may be summed up — (1) The question whether a witness would be permitted to prove documents without his previously filing affidavit relating to the matter, is left open and would be examined in an appropriate case; (ii) once a witness is examined to prove such documents, cross-examination cannot be confined to matters deposed to in examination-in-chief If it is directed as to relevant matters it can cover the field not covered by examination-in-chief.
8. The order of the learned Magistrate is contrary to law and is accordingly set aside. He is directed to allow Fakir Charan to be cross-examined by the petitioner on merit. The revision is allowed Records of the case be sent back at once.
