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Lallubhai Dayaram Bhatt Vs. Karimbhai Dattekhan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 484 of 1957
Judge
Reported inAIR1958Bom276; (1957)59BOMLR942; 1958CriLJ862; ILR1958Bom224
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 17-B, 145, 145(6), 435 435(2) and 435(4)
AppellantLallubhai Dayaram Bhatt
RespondentKarimbhai Dattekhan and anr.
Appellant AdvocateC.S. Trivedi, Adv.
Respondent AdvocateS.J. Seth, Adv. for ;V.R. Upadhyaya, Adv.;Y.V. Chandrachud, Asst. Govt. Pleader
Excerpt:
.....1898), sections 145, 435, 17-b - order passed by executive magistrate under section 145--whether sessions judge has jurisdiction to entertain application in revision against such order--maintainability of application to high court.;a sessions judge has no jurisdiction to entertain an application in revision against an order passed by an executive magistrate under section 145 of the criminal procedure code, 1898.;such an application would lie to the high court under section 435(4) of the code, but before a party approaches the high court he should first apply to the district magistrate or the sub-divisional magistrate, as the case may be, under section 435(2) of the code.;chandulal muljibhai pandya v. muljibhai purshottam pandya (1956) criminal revision application no. 873 of 1956,..........not be disturbed. the petitioner applied, in revision, to the sessions court. the extra additional sessions judge, who heard his application, held-that he had no jurisdiction to entertain it under section 435, cr. p.c. he, therefore, dismissed the application. against this order, the petitioner has come in revision to this court. 2. the principal question, which we have to decide in this application is, whether the sessions court has power to revise an order passed by an executive magistrate, under section 145, cr. p.c. section 17-b provides that courts of session and courts of magistrates shall be criminal courts inferior to the high court and courts of magistrates outside greater bombay shall be criminal courts interior to the court of session. it has been urged by mr. trivedi that by.....
Judgment:

Chainani, J.

1. In this case there was a dispute between the petitioner and opponent No. 2 with regard to possession of certain lands. As it was apprehended that the dispute might result in breach of peace, proceedings under Section 145, Criminal Procedure Code were held by the Sub-divisional Magistrate, Himatnagar. He came to the conclusion that opponent No. 2 was in actual possession of lands. Therefore, under Sub-section (6) of Section 145, Criminal Procedure Code, he directed that opponent No. 2 should continue in possession until evicted therefrom in due course of law, and that till then his possession should not be disturbed. The petitioner applied, in revision, to the Sessions Court. The Extra Additional Sessions Judge, who heard his application, held-that he had no jurisdiction to entertain it under Section 435, Cr. P.C. He, therefore, dismissed the application. Against this order, the petitioner has come in revision to this Court.

2. The principal question, which we have to decide in this application is, whether the Sessions Court has power to revise an order passed by an executive Magistrate, under Section 145, Cr. P.C. Section 17-B provides that Courts of Session and Courts of Magistrates shall be Criminal Courts inferior to the High Court and Courts of Magistrates outside Greater Bombay shall be Criminal Courts interior to the Court of Session. It has been urged by Mr. Trivedi that by reason of this Section 17-B, the executive Magistrates are Criminal Courts inferior to the Court of Session. He has relied on the judgment of Gajendragadkar, J. in Criminal Revn. Appln. No. 873 of 1956 (Bom) (A). In that case the Sessions Judge had taken the view, on a revision application made to him against an order passed under Section 145, Cr. P.C., that he and the District Magistrate had concurrent jurisdiction under Section 435. He, however, dismissed the application on the ground that it was more appropriate for the petitioner to approach the District Magistrate. This order was set aside by Gajendragadkar, J., who observed:

'I do not think that the learned Sessions Judge was right in refusing to exercise the jurisdiction on the ground that the learned District Magistrate would be more appropriate authority to deal with this matter. If the jurisdiction is concurrent then the reason given by the learned Sessions Judge for refusing to exercise his jurisdiction is obviously untenable.' Gajendragadkar, J., did not, therefore, himself decide the question whether both the Sessions Judge and the District Magistrate have concurrent jurisdiction under Section 435, Cr. P.C. to entertain an application against an order made under Section 145, Cr. P.C. In fact, the judgment shows that this question was not even argued before him.

3. The only other decision, which we have able to find, is that of Dixit, J., in Criminal Appln. No. 1338 of 1954, D/- 11-2-1955 (Bom) (B), in which he held that a proceeding under Section 145, Cr. P.C. is not a proceeding entertained by a Criminal Court. We do not think that it is necessary to decide this question in this case, because it seems to us that an application against an order made under Section 145, Cr. P.C. cannot lie to the Sessions Court, in view of the provisions of Sub-section (2) of Section 435, Cr. P.C., which provides for the record of any such proceeding being called for and examined by a District Magistrate or a Sub-divisional Magistrate. As, therefore, this Sub-section makes a specific provision as to the authority, which can examine the correctness, legality or propriety of an order made by an executive Magistrate under Section 145, Cr. P.C., the jurisdiction of the Sessions Judge is necessarily ousted. The ordinary rule of interpretation is that where there is a specific provision with regard to any matter, that must prevail over the general provisions made in the enactment.

4. We are accordingly of the opinion that a Sessions Judge has no jurisdiction to entertain an application in revision against an order passed by an executive Magistrate under Section 145, Cr. P.C.

5. Such an application, of course, lies to the High Court under Sub-section (4) of Section 435, Cr. P.C. But before a party approaches the High Court, he should first apply to the District Magistrate or the Sub-divisional Magistrate, as the case may be, under Sub-section (2) of Section 435, Cr. P.C.

6. In this case the petitioner has not so far applied to the District Magistrate. He should do so before comma to this Court. We will, therefore, discharge the rule, without expressing any opinion on the question whether the order, which has been challenged in this application, is correct or otherwise. The petitioner may, if he is so advised, apply to the District Magistrate under Sub-section (2) of Section 435, Cr. P.C.

7. Rule discharged.


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