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Smt. Lakshmi and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 185 of 1961
Judge
Reported inAIR1962All165
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 10, 12, 13, 13(1), 145 and 145(1)
AppellantSmt. Lakshmi and ors.
RespondentState
Appellant AdvocateD.P. Mital, Adv.
Respondent AdvocateL.D. Joshi, Adv. and ;H.C.P. Tripathi, Addl. Govt. Adv.
Excerpt:
criminal - appointment of sub-divisional magistrate - sections 13 and 145 of criminal procedure code, 1898 - appointment of only one sub- divisional magistrate in a sub division under section 13 -more than one magistrate cannot be in charge of a sub division and an additional sub-divisional magistrate exercising powers under section 145 - held, order passed without jurisdiction. - .....sub-divisional magistrate in a sub-division. the same view has been taken by the madhya pradesh high court in gaja-dharlal v. suganchand, air 1958 madh pra 184.6. sri s. c. goil was not even a magistrate of first class either on the date he passed the preliminary order under section 145, or on 16th of june, 1960, when he passed the final order. we are informed by the additional government advocate who appeared on behalf of the state that the powers of a first class magistrate were conferred on sri s. c. goil with effect from 27th june 1960.7. sri s. c. goil, not being either a sub-divisional magistrate or a magistrate first class, could not exercise jurisdiction under section 145 cri. p. c. the order passed by him was consequently without jurisdiction and is liable to be quashed. the.....
Judgment:

Singh, J.

1. This is an application in revision by Srimati Lakshmi and others against an order passed by Sri. S. C. Goil, Additional Sub-Divisional Magistrate, Sadar, Bukndshahr on 16th of June, 1960, in proceedings under Section 145 Gri, P. C. The Magistrate held that the applicant in the proceedings before him was in possession of the plot in dispute On the date of the preliminary order and the attached plot was, therefore, directed to be released in his favour. The opposite parties in the case went up in revision before the Sessions Judge, and their main contention before him was that there could be only one Sub-Divisional Magistrate in a Sub-Division, that no additional Sub-Divisional Magistrate could exercise powers of a Sub-Divisional Magistrate under Section 145 Cri. P. C. and that, therefore, the order passed by Sri. S. C. Goil was without jurisdiction. It was also urged that as Sri S. C. Goil had powers of only a Second Glass Magistrate, he could not even otherwise exercise jurisdiction Under Section 145.

2. This contention of the applicants did not find favour with the learned Sessions Judge and their application was dismissed. They consequently filed this revision in this Court. The application came up for hearing before a learned Single Judge, who finding that the point raised in this application was of a general importance, referred it to a larger Bench.

3. The question involved in this revision is simple. A Sub-Divisional Magistrate is appointed under Sub-section (1) of Section 13 Cri. p. C. This subsection reads :

'(1) The State Government may place any Magistrate of the first or second class incharge of a sub-division, and relieve him of the charge as occasion requires.'

4. A bare reading of the sub-section would show that what is intended is that one Magistrate, either of first or of second class, may be placed incharge of a sub-division. And it is also obvious that only one person, and not two or more, could be in charge of a sub-division. Where more than one Magistrates are intended to be appointed in a district, the Legislature has used a different language. Section 12(1) relates to the appointment of Magistrates in a district, and it authorises the State Government to appoint as many persons as it thinks fit besides the District Magistrate, to be Magistrates of first, second or third class in any district. Thus while two or more Magistrates may be appointed in a district under Sub-section (1) of Section 12, only one Magistrate may be appointed under Sub-section (1) of Section 13 to be a Magistrate in charge of the sub-division.

5. Section 10 of the Code relates to the appointment of a District Magistrate in a district. Under Sub-section (1) of that section, only one District Magistrate may be appointed in a district, though Sub-section (2) provides for the appointment of Additional District Magistrates. There is no provision under Section 13 corresponding to Sub-section (2) of Section 10. This also leads to the very same inference that the intention of the Legislature has been to provide for only one Sub-Divisional Magistrate in a sub-division. The same view has been taken by the Madhya Pradesh High Court in Gaja-dharlal v. Suganchand, AIR 1958 Madh Pra 184.

6. Sri S. C. Goil was not even a Magistrate of first class either on the date he passed the preliminary order under Section 145, or on 16th of June, 1960, when he passed the final Order. We are informed by the Additional Government Advocate who appeared on behalf of the State that the powers of a first class Magistrate were conferred on Sri S. C. Goil with effect from 27th June 1960.

7. Sri S. C. Goil, not being either a Sub-Divisional Magistrate or a Magistrate first class, could not exercise jurisdiction under Section 145 Cri. P. C. The order passed by him was consequently without jurisdiction and is liable to be quashed. The final order dated 16th June, 1960, as also the preliminary order passed by Sri S. C. Goil under Section 145 Cri, P. C. are set aside. The application under Section 145 aforesaid shall be dealt with by the Sub-Divisional Magistrate having jurisdiction ora Magistrate first class in accordance with law.


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