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Syed Ismail Qadri Vs. Syed Abdul Nabi - Court Judgment

LegalCrystal Citation
SubjectCriminal;Property
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 73 of 1968
Judge
Reported in1969CriLJ752; (1969)1MysLJ1
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145, 145(4) and 526
AppellantSyed Ismail Qadri
RespondentSyed Abdul Nabi
Excerpt:
.....interesting reading and runs thus: he further stated that when he applied for the copies of the orders passed by the sub divisional magistrate, and also of the not made in the order sheet by the sheristedar, the copy application was summarily rejected which clearly indicated that the magistrate was very much interested in the first party (the petitioner before him. the learned sessions judge who heard the arguments advanced on behalf of both the parties came to the conclusion that there was reasonable apprehension in the mind of the respondent that he would not get justice at the hands of the sub divisional magistrate and that the said apprehension was well founded on the materials placed before him, and that therefore it was a fit case which should be transferred to some other court for..........gulbarga, to any other competent magistrate for trial and disposal of the case before the sessions judge, gulbarga under section 526 of cr.p.c. he has stated in his petition that the orders passed by the learned sub divisional magistrate disclosed his ignorance of the law; that all the orders were perverse and had been done in violation of the provisions of section 145 of the cr.p.c., and without notice to him and that he had done so with a view to enable the present petitioner, who was the first party before him to get into possession of that lands and harvest the crops that were raised by them. he also stated that the sub divisional magistrate was a close relation of the first party and that therefore, it was difficult for him to get justice at his hands. he further stated that when he.....
Judgment:

1. The petitioner filed an application for action being taken under Section 145 of the Code of Criminal Procedure before the Sub Divisional Magistrate, Gulbarga, in his proceedings No. Cr.P.C. 66-67/64 and arrayed the respondent as the respondent.

2. The Sub Divisional Magistrate entertained the petition and on the basis of the note put up by the Sheristedar of his Court passed an order directing the Tahsildar to take possession of the lands in dispute for the purpose of management. He directed him to auction the crops standing on the lands.

3. The order passed by the Sub Divisional Magistrate as disclosed in the order sheet dated 6-10-1966 is an interesting reading and runs thus:--

'The land in question may be taken to Court custody and crop auctioned until the case is disposed of.'

This note admittedly, was made by the Sheristedar of the Sub Divisional Magistrate's Court. This note prepared by the Sheristedar was placed before the Sub Divisional Magistrate, on the very same day and he passed the following order:

'Yes, order be issued accordingly.' It is on the basis of this order that the Tahsildar of Gulbarga directed his Sub-ordinate namely, the Revenue Inspector, to carry out the orders and take possession of the lands and sell the crops standing on the lands on or before 1-10-1966. No notice of this order was served on or issued to the respondent. It appears that some time after this order was passed, the Sheristedar of the Court pointed out to the Sub Divisional Magistrate that the order directing the Tahsildar to take possession of the lands was irregular, inasmuch, as no preliminary order under sub-section (1) of Section 145(4) of the Cr.P.C., had been passed, before a direction under Section 145(4) of the Cr.P.C. was issued. A note to that effect was put up by the Sheristedar and placed before the Sub Divisional Magistrate. The Sub Divisional Magistrate thereafter directed notice to be sent to the parties for hearing before them, after fixing up a date. Thereafter, a notice was issued to the parties concerned.

In the meanwhile, the respondent presented several petitions for various reliefs but all those petitions were e rejected summarily by the Sub Divisional Magistrate without hearing him and without notice to him. Thereafter, the respondent filed an application for transfer of the case from the file of the Sub Divisional Magistrate, Gulbarga, to any other competent Magistrate for trial and disposal of the case before the Sessions Judge, Gulbarga under Section 526 of Cr.P.C. He has stated in his petition that the orders passed by the learned Sub Divisional Magistrate disclosed his ignorance of the law; that all the orders were perverse and had been done in violation of the provisions of Section 145 of the Cr.P.C., and without notice to him and that he had done so with a view to enable the present petitioner, who was the first party before him to get into possession of that lands and harvest the crops that were raised by them. He also stated that the Sub Divisional Magistrate was a close relation of the first party and that therefore, it was difficult for him to get justice at his hands. He further stated that when he applied for the copies of the orders passed by the Sub Divisional Magistrate, and also of the not made in the order sheet by the Sheristedar, the copy application was summarily rejected which clearly indicated that the Magistrate was very much interested in the first party (the petitioner before him. He therefore stated that it was absolutely necessary that the records of the case should be called for by the learned Sessions Judge and transferred to any Court within his jurisdiction for disposal.

Notice of this petition was issued to the present petitioner and he was duly served. A copy of the transfer petition was also sent along with a copy of the affidavit filed by the respondent to the Sub Divisional Magistrate for his remarks. The learned Magistrate submitted his remarks on every one of the points raised in the affidavit filed on behalf of the respondent. The learned Sessions Judge who heard the arguments advanced on behalf of both the parties came to the conclusion that there was reasonable apprehension in the mind of the respondent that he would not get justice at the hands of the Sub Divisional Magistrate and that the said apprehension was well founded on the materials placed before him, and that therefore it was a fit case which should be transferred to some other court for trial and disposal. He accordingly directed that the court proceedings in No. Cr.P.C./66-67/64 be withdrawn from the file of the Sub Divisional Magistrate, Gulbarga and transferred to the file of Second Additional Magistrate, Gulbarga, for disposal according to law.

4. It may mentioned here that an objection to the effect that the learned Sessions Judge had no jurisdiction to entertain an application to transfer a case pending on the file of the Sub Divisional Magistrate was specifically raised, in the objection statement filed on behalf of the respondent. But as is clear from the order passed by the learned Sessions Judge, at the time of the arguments this point was abandoned by the learned counsel who appeared for the respondent. Therefore, the learned Sessions Judge dealt with transfer petition on the merits. After analysing the materials placed before him, he came to the conclusion that it was fit case in which the proceedings should be transferred from the file of the Sub Divisional Magistrate to the file of the Second Addl. Magistrate, Gulbarga, for disposal in accordance with law.

5. It is argued by Mr. Joshi, the learned counsel for the petitioner that the learned Sessions Judge, Gulbarga, had no jurisdiction to entertain an application for transfer of the case which has been pending on the file of the Sub Divisional Magistrate, Gulbarga, and that the order passed by the learned Judge is therefore illegal and is liable to be set aside.

6. There is considerable substance in the contention of Mr. Joshi. After the Amendment Act of 1965 came into force, there are two sets of Magistrate's Courts in each District of the State viz., Judicial Magistrates Courts and Sub Divisional Magistrates Courts. The Sub Divisional Magistrate admittedly is not subordinate to the Sessions Judge. The Sub Divisional Magistrate is subordinate only to the District Magistrate, as is clear from the several provisions of the Act. That being so, if at all any authority is entitled to revise or set aside the order passed by the Sub Divisional Magistrate, it is only the District Magistrate, and not the Sessions Judge. The First Class Magistrates i.e. the Judicial Magistrates (First Class) are subordinate to the Sessions Judge, while the Sub Divisional Magistrates and Taluka Magistrates are subordinate to the District Magistrate, as is clear from Section 6-A of the Mysore Amendment Act of 1965 to the Code of Criminal Procedure. That being so, the learned Sessions Judge was entirely wrong in entertaining an application filed before him by the respondent for the transfer of the proceedings pending before the Sub Divisional Magistrate, Gulbarga, and directing that the same should be transferred to the file of the Second Additional Magistrate, Gulbarga. The order passed by the learned Sessions Judge cannot at all be supported and it is liable to be set aside.

7. It is now clear from the facts set out above that the learned Sub Divisional Magistrate, Gulbarga, has acted arbitrarily in passing order under Section 145 of the Cr.P.C., without issuing notice to the respondent. It is further clear from the facts of the case stated above, the proceedings under Section 107 of the Cr.P.C., had in fact been instituted against the present petitioner and his followers in connection with the dispute, relating to these lands and the same was pending in court on the date on which the Sub Divisional Magistrate, passed the impugned order. It is needless to state that the learned Sub Divisional Magistrate was not at all justified in entertaining a petition filed by the petitioner for action being taken under Section 145 of the Cr.P.C., and to pass on order directing the Tahsildar of Gulbarga to take possession of the lands along with the standing crop thereon, even without notice to the respondent. It is clear further from the facts stated above that the learned Sub Divisional Magistrate did not apply his mind and that he acted as a mouth piece of the Sheristedar who put up a note to that effect. The only order passed was nodding his head as 'Yes' to the note put up by the Sheristedar. It is further clear from the orders that the learned Magistrate acted arbitrarily in refusing to furnish copies of the orders passed in the order sheet, when the respondent filed an application for them and issuing him an endorsement to the effect that copies of the order sheet cannot be furnished. These make facts make it abundantly clear that the petitioner before me has taken advantage of the ignorance of the Magistrate and abused the process of the Court. To allow these proceedings to be pending either before the Sub Divisional Magistrate or any other Magistrate would, in my opinion, mean to allow or permit the present petitioner to abuse the process of the Court as the property has now been put in his possession. I, therefore, feel that it is necessary that the entire proceedings should be quashed by exercising the power of the Court under Section 561-A of the Code of Criminal Procedure.

8. I therefore direct that the proceedings instituted by the petitioner in Cr.P.C. 66, 67/64 on the file of the Sub Divisional Magistrate, Gulbarga, be quashed and direct that the proceedings be dropped.

9. Order accordingly.


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