JUDGMENT

C.D. Parekh, J. - This reference has been made by order dated 23rd January, 1971 by the 1st Temp. Sessions Judge, Azamgarh. He has recommend- ed that the order dated 3rd June, 1970 passed by shri S. K. Khare, Magistrate Ist Class, Azamgarh, be set aside and he be directed not to admit the affidavit of the accused as evidence in the case and further direction be given to the Magistrate to proceed with the case according to law.

2. One Ram Lakhan was being prosecuted under section 13 of the U. P. Roadside Land Control Act. After the close of the prosecution case Ram Lakhan was allowed to file an affidavit and he did so, denying the ownership and construction of the disputed building. An objection was raised on behalf of the State about the admissibility of the affidavit on which learned Magistrate passed the following order :--.

"The applicant may cross-examine the witness, if he likes". The learned Judge has given cogent reasons for holding that the order passed by the magistrate was not according to law. He has stated that the matter is neither covered by S. 342-A nor is covered by any other provision of Cr.P.C. whereby an accused person may file an affidavit and that affidavit be taken as evidence in the case.

3. In my opinion the learned judge has correctly made this reference and I agree with the reasonings given by him.

4. The reference is accepted. The order dated 3rd June, 1970 passed by the Magistrate is set aside.