M.C. Desai, J.
1. Shyam Lal opposite party filed a complaint under Section 379 I.P.C., against the applicants Faqir Ahmad etc. It was dismissed by the trial court which discharged the applicants. Shyam Lal applied to the Additional District Magistrate for revision of the order of discharge and the Additional District Magistrate allowing the application set aside the order of discharge and directed further inquiry. The applicants moved the Sessions Judge to revise the order of the Additional District Magistrate on the ground that it was improper and the learned Sessions Judge has made this reference for its being set aside. His jurisdiction to entertain the applicants' revision implication was challenged as barred by Section 435 (4) Cr. P.C., he took the view that the provision only forbade his entertaining another application against the orderof the trial court but did not forbid his entertaining an application against the revision order of the Additional District Magistrate. He relied upon Sheeraj v. Emperor, : AIR1948All46 .
2. Under Section 435 (1) the high Court or any Sessions Judge or District Magistrate may call for and examine the record of any proceeding 'before any interior criminal court'; the explanation makes it clear that 'all Magistrates, wether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge.' Subsection (4) lays down that 'if an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them.' The Sessions Judge and the District Magistrate have been empowered by Sections 436 and 437 to order further inquiry into any complaint that has been dismissed under Section 203 or Section 204(3) or into the case of any person who has been discharged and to order commitment of any person who has been improperly discharged. In cases not covered by Sections 436 and 437, they can only report for orders of the High Court the result of the examination of the record summoned under Section 435 and only the High Court has jurisdiction of passing orders. An additional District Magistrate has the powers of the District Magistrate. The Sessions Judge and the District Magistrate have thus concurrent revisional jurisdiction, though it does not follow that only one of them can be approached. In certain matters (viz. those mentioned in Sections 436 and 437) the High Court has concurrent jurisdiction with the Sessions judge and the Dstrict Magistrate, but is not prevented by this fact from exercising it in the event of the failure or refusal of the Sessions Judge or the District Magistrate to exercise it. If the High Court can exercise jurisdiction under Section 436 or 437 on the failure or refusal of the Sessions Judge or the District Magistrate to exercise it, there js no reason for saying that the Sessions Judge cannot exercise the jurisdiction on the failure of the District Magistrate to exercise it. But for Sub-section (4), the Sessions Judge would have had jurisdiction to entertain a revision application on the failure or refusal of the District Magistrate to entertain one. When the District Magistrate entertains an application under Section 435 he can dismiss it and refuse to interfere with the inferior court's order or order further inquiry or commitment under Section 436 or 437 or report the result of the examination to the High Court under Section 438; whichever order he passes is in itself an order of a criminal court liable to be revised, but it can be revised only by a superior court. The High Court js unquestionably a superior court and can revise it, but the Sessions Judge is not and cannot revise it. The District Magistrate is inferior to him but only when exercising original or appellate jurisdiction; he is not inferior when exercising revisional jurisdiction under section 435. When the District Magistral convicts or acquits an accused in a case tried by him or passes any order in an appeal from a sub-ordinate court's judgment or order, his order can be revised by the Sessions Judge: but whpn he passes an order under Sections 436 and 437 or makes a report to the High Court under Section 438, the Sessions Judge has no jurisdiction to revise his order. Mulla J. in the case of Sheo Raj, : AIR1948All46 taking the contrary view drew distinction between 'whether exercising original or appellate jurisdiction 'and' while exercising original or appellate jurisdiction': with great respect I am unable to understand the distinction. It seems clear to me that when it is to be decided whether an order passed by a Magistrate (including the District Magistrate) is an order of an inferior court, the nature of the jurisdiction that the Magistrate exercised in passing the order is an essential fact to be considered; if he passed the order in his original jurisdiction, or in his appellate jurisdiction, he will be deemed to be inferior but not otherwise. I respectfully agree with Dalai A.J.C. who in Emperor v. Balwant Singh AIR 1924 Oudh 241 observed at page 242 that 'as a Court of revision the Court of the District Magistrate is not inferior to that of the Sessions Judge.'
3. In Darbari Mandar v. Jagoo Lal, ILR 22 Cal 573 it was said : 'When a further inquiry has been refused by one of these officers we think that it would be an unseemly proceeding, to say the least, that it should be ordered by the other.' This observation was approved by Spankie A.C.J. in Debi Din v. King Emperor, 4 Oudh Gas 119; he observed at page 122; 'The intention of the Legislature, in enacting the last clause of Section 435, was, I think, to prevent the Sessions Judge and the District Magistrate from simultaneously exercising their powers of revision, and from exercising them in such a way as would amount to one of them, as it were, hearing an appeal from, or reviewing, an order passed by the other of them.' To the same effect was the observation of Subrahmania Ayyar and Devies JJ. in Kalimuthu v. Emperor ILR 26 Mad 477; they observed at p. 478 : 'The reason for the prohibition is the avoidance of a conflict between the orders of two District authorities having co-ordinate powers in the matter.' Reference may also be made to a similar observation by Young J. (following the decision in the case of Kalimuthu ILR 26 Mad 477 in Mohammad Husain v. Nanhi : AIR1930All257 . Sub-section (4) having been enacted to prevent the Sessions Judge from sitting in judgment over the District Magistrate's order passed in revisional jurisdiction, he cannot entertain an application under Sub-section (1) whatever be the nature of the order passed by the District Magistrate. It was contended betfore me that Sub-section (4) only prohibits the Sessions Judge's entertaining an application when the District Magistrate dismisses the application for Revision but not when the District Magistrate grants the application and passes an order contemplated by Section 436 or 437. This distinction has no support in law. The jurisdiction of the Sessions Judge to entertain a revision application depends only upon whether the District Magistrate when exercising revisional jurisdiction acted as an inferior court or not, and not at all upon the nature of the order passed by him in exercise of the revisional jurisdiction. Once a revision application has been entertained by the District Magistrate the jurisdiction of the Sessions Judge to entertain another revision application is gone; it is gone even if he has passed no order on it and obviously it is irrelevant to consider what order he passed on the application. 'Further application' in the Sub-section means application in the same matter or against the same order of the inferior criminal Court; see : AIR1930All257 and Emperor v. Waryam 14 Cri LJ 134 (Lah) at p 135. In the case of Waryam 14 Cri LJ 134 (Lah) it was observed by the Division Bench:-'The effect ..... is to extend the applicationof Section 435 (4) to all rases in which either a District Magistrate or a Sessions Tudge has taken action, or has refused to take action, under Section 435 or 436 or 437 or 438.' In the case of Mohammad Husain : AIR1930All257 . it was made clear that 'where either the Sessions Judge or District Magistrate has had an application in revision in the same matter before them moved by either party, the other local Dist. Court would have no jurisdiction to hear a further application in the same matter.' The further observation in the case of Darbari Mandar, ILR 22 Cal 573 to the effect that 'if the Sessions Judge was of opinion that the order of the District Magistrate' made under Section 437' was wrong, it was open to him to refer the matter to this Court under Section 438' was made before the addition of Sub-section (4) and no longer holds good. When the Sub-section debars the Sessions Judge from entertaining an application under Section 435, there can arise no question of hits making a report to the High Court under Section 438, he is forbidden to entertain the application altogether. In Karpurasundaram Pillai In the matter of, 5 Cri LJ 132 (Mad), it was held that it is not competent for the Sessions Tudge to entertain an application under Section 435 after the District Magistrate had dismissed one. This decision was followed in the case of Waryam, 14 Cri LT 134 (Lah). In Darbari Mandar's case. ILR 22 Cal 573, it was held that the Sessions Judge has no jurisdiction to revise an order made by the District Magistrate under Section 437.
4. Though the High Court has concurrent jurisdiction with the Sessions Judge and the District Magistrate to revise an order passed by an inferior criminal court it is the accepted practice of all the High Courts not to exercise the jurisdiction so long as 'the aggrieved party has not approached the Sessions judge or the District Magistrate. In Abdul Wahid Khan v. Abdullah Khan ILR 45 All 656: (AIR 1924 All 1), Lindsay and Daniels, JJ. observed at p. 662 (of ILR All) : (at p. 4 of AIR); 'if the Sessions Judge or District Magistrate considers that the application should not be entertained, he rejects it, leaving the aggrieved party to apply to the High Court direct.' In Bhure Mal v. Emperor, ILR 45 All 526 : (AIR 1923 All 606J, Daniels, J. said at page 528 (of ILR All) : (at p. 607 of AIR) : 'The object of requiring an application in these cases to be presented first to the lower appellate Court is that this court in dealing with the matter may have before it a reasoned opinion of two courts on the points at issue, and this object will be largely defeated if applicants arc allowed to take in this Court points which they did not press in their application in revision in the court below.' It will be noticed that the rule requires the aggrieved party to approach only one of the two local Courts before approaching the High Court and not both. If the Sessions Tudge had revisional Jurisdiction over the refusal of the District Magistrate to revise an order of the trial Court the rule of practice would have required the aggrieved party, on its failure before the District Magistrate, to approach the Sessions Judge before approaching the High Court but in every case it has been laid down that he must approach (only) one or the other and he is never required to approach both. This practice supports the view that under the law he cannot approach both. In the case of Mohammad Husain : AIR1930All257 , it was expressly held that when the District Magistrate passed an order under section 436. the aggrieved accused could not file an application in the court of the Sessions Judge to revise the order but must apply direct to the High Court I respectfully dissent from the observation of Mulla, J., in the case of Sheo Raj. : AIR1948All46 , that the Sessions Judge can entertain an application under Section 435 against an order of the District Magistrate Magistrate passed under Section 426. The learned Judge did not refer to the previous decisions of this court and did not give any reason or cite any authorities in support of his view. Moreover the learned Judge's observation was obiter as he himself conceded; the Sessions Judge had refused to entertain the application.
5. My conclusion is that if an application made to the District Magistrate is pending before him or has been dismissed by him, any other application for revision of the impugned Order is a further application in the same matter and the sessions Judge's jurisdiction even to entertain it is barred by Sub-section (4) and that if the District Magistrate has allowed the application and set aside the impugned order, there is no occasion for any further application for its revision (for the simple reason that it no longer exists) and the question whether a further application can be made to the Sessions Judge or not cannot arise.
In latter case the order of the District Magistrate itself is revisable but only by the High Court and not by the Sessions Judge to whom he is not inferior in this respect. The learned Sessions Judge had, therefore, no jurisdiction to entertain the application and of course he had no jurisdiction to refer the case to this court for revision of the Additional District Magistrate's order.
6. The matter has somehow come to this Court's notice and it is competent under Section 439 to interfere with the order of the Additional District Magistrate. I can, therefore, set aside the order of the Additional District Magistrate, if I find that it was illegal or improper.
7. It is the case of the opposite-party himself that the applicants were his partners in the business of manufacturing 'katha,' that he was to invest the capital and they were to supervise the manufacture of 'kattha' and that they removed 'Kattha' from the godown belonging to the partnership to their house. On these allegations no offence of section 379 or 409 is made out against the applicants who are partners.
The property belonged to the partnership and not to the opposite party and was in possession of the partnership and not of him. Even when the applicants removed it to their house it remained in possession of the partnership. The Additional District Magistrate was, therefore, wrong in ordering further inquiry and directing a charge to be framed against the applicants.
8. I cannot say that I accent the reference,but I do hereby set aside the order of the Additional District Magistrate dated 9-7-1955.