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Sarjoo and ors. Vs. BabadIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ1562
AppellantSarjoo and ors.
RespondentBabadIn and anr.
Excerpt:
- - the petitioner feeling aggrieved, went up in revision to the sessions judge, allahabad and contended that the order passed by the learned magistrate stood vitiated because of the failure on his part to decide the jurisdictional question which had been raised by them before him. it is no longer open to controversy that the failure to decide such a question, makes the final order coram non judice. the analytical break-up of sub-section (3) of section 397. would clearly point to that fact. the words that are significant in sub-section (3) of section 397 are 'any person' and 'same person'.these words point to the situation where both parties may feel aggrieved and both may like to file a revision, or there may be several persons, arrayed on the same side and all may feel aggrieved and..........such, possession until such eviction. the petitioner feeling aggrieved, went up in revision to the sessions judge, allahabad and contended that the order passed by the learned magistrate stood vitiated because of the failure on his part to decide the jurisdictional question which had been raised by them before him. the learned sessions judge, however, dismissed the revision by the remark that there was an observation in the judgment of the magistrate that a dispute between parties existed regarding land and that observation was sufficient to indicate that apprehension of breach of peace existed this remark of the learned sessions judge, however, is not borne out from the record. the learned magistrate has certainly narrated the facts and in that connection has stated the respective cases.....
Judgment:
ORDER

K.B. Srivastava, J.

1. This application under Section 482 of the Code of Criminal Procedure, 1973, arises out of the following facts;-

The respondent Babadin instituted proceedings under Section 145 of the Code against the five petitioners in the Court of the Sub-Divisional Magistrate, Manjhanpur, District Allahabad. The learned Magistrate, passed the preliminary order on February 11, 1974, The petitioners filed their written statement on May 24, 1974, in paragraph 1 of which, they raised the plea that no dispute likely to cause a breach of the peace exists or has existed, and they supported this plea of theirs in various affidavits. The learned Magistrate passed no orders on this plea of theirs and instead proceeded to issue the final order declaring Babadin to be entitled to possession until evicted in due course of law, and forbidding all disturbance of such, possession until such eviction. The petitioner feeling aggrieved, went up in revision to the Sessions Judge, Allahabad and contended that the order passed by the learned Magistrate stood vitiated because of the failure on his part to decide the jurisdictional question which had been raised by them before him. The learned Sessions Judge, however, dismissed the revision by the remark that there was an observation in the judgment of the Magistrate that a dispute between parties existed regarding land and that observation was sufficient to indicate that apprehension of breach of peace existed This remark of the learned Sessions Judge, however, is not borne out from the record. The learned Magistrate has certainly narrated the facts and in that connection has stated the respective cases of the parties but nowhere has he given a decision in so far as the jurisdictional question was concerned. It is no longer open to controversy that the failure to decide such a question, makes the final order coram non judice. If any authority is needed on the point, I may cite the Full Bench decision of this Court in Gajraj v. Collector Singh 1975 All LJ 99 : 1975 Cri LJ 1026 (FB). In view of that pronouncement of the law, I have no manner of doubt in my mind that the impugned order passed by the learned Magistrate is a nullity which, requires to be quashed.

2. The learned Counsel for the petitioners has taken his stand on Sections 482 and 483 of the Code and has argued that the impugned order can be quashed under both or either of these two sections. The argument based on Section 483 is, however, wholly misconceived. That section says that every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrate. There is no question of expeditious disposal of any pending matter, as the case already stands decided. With regard to the exercise of superintendence for the proper disposal of cases, proceeding on the assumption that the supervisory power is both judicial and administrative, it is apparent that it can be exercised only over Judicial Magistrate and not Executive Magistrates. Under Section 6 of the Code, Executive Magistrates constitute a class of criminal Courts different from the class of criminal Courts manned by the Judicial Magistrates. Sections 11 to 15 deal with Judicial Magistrates, while Executive Magistrates have been dealt with by Sections 20 to 23. Proceedings under Section 145 lie within the jurisdiction of Executive Magistrates and not judicial Magistrates. The impugned order was passed by an Executive Magistrate and there is thus no supervisory power to correct a mistake committed by such a Magistrate. The claim of the petitioners has, therefore, to be tested under Section 482.

3. The learned Counsel for Babadin has vehemently argued that the revisional order passed by the learned Sessions Judge is final and sacrosanct and cannot be touched by this Court even under Section 482. He invited my attention in this regard to Sub-sections (3) of Sections 397 and 399. Sub-section (1) of Section 397 confers co-ordinate revisional jurisdiction upon the High Court and the Sessions Judge so that either of them has the power to call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to -the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court etc. Once the record has been called for and examined, the Sessions Judge will exercise his revisional power under Section 399 and the High Court under Section 401. However, the right to file two revisions, initially before the Sessions Judge and thereafter before the High Court has been taken away under the new Code. The analytical break-up of Sub-section (3) of Section 397. would clearly point to that fact. The break-up is to the effect (1) if an application has been made by any person, (2) under this Section 397(3) either to the High Court or to the Sessions Judge, (4) no further application by the same person, (5) shall be entertained by the other of them. The intention is obvious that when an application has been made to either the High Court or the Sessions Judge, it cannot again be entertained by the other of them. The right now stands restricted to one revision only; and it has been left to the option of the revisionist to approach either the High Court or the Sessions Judge, that is to say, to choose the forum where he will ventilate his grievance, but to choose only one forum. The words that are significant in Sub-section (3) of Section 397 are 'any person' and 'same person'. These words point to the situation where both parties may feel aggrieved and both may like to file a revision, or there may be several persons, arrayed on the same side and all may feel aggrieved and may like to file a revision separately from others. In such a situation, some of them may file a revision in the High Court and some before the Sessions Judge. This right of theirs to choose their own forum will not be barred by Sub-section (3) to Section 397, but in either case, each of them will be limited to only one round of their battle, namely, either to wage the war before the High Court or before the Sessions Judge. In a situation where the revisions are from a judgment of conviction and have been filed by one before the High Court and by another before the Sessions Judge, Section 402 will come into play. Where, however, the revisions filed are not against the conviction but against some other order in a criminal proceeding, the prospect of a conflict of opinion between two Courts, can be avoided by the High Court by an order of transfer passed under Section 407 or even by an order under Section 482. The purpose behind Sub-section (3) of Section 399 is different from the object underlying Sub-section (3) of Section 397. It visualizes a situation where an application for revision is made before the Sessions Judge and not before the High Court and provides for the effect of a decision given by the Sessions Judge. In such an event, the decision of the Sessions Judge in relation to the person who has filed a revision before him, shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court. This sub-section makes the revisional order passed by the Sessions Judge final. I am concerned with a situation where the Sessions Judge has dismissed the revision and the argument is two-fold, namely : (1) the revisionist cannot have a second forum to re-agitate the same matter, (2) as finality attaches to the revisional order passed- by the Sessions Judge. There can be no quarrel with this proposition of law. The use of the words 'under this section' and 'no further application' and 'shall be entertained by the other of them', as occurring in Sub-section (3) of Section 397 and the further use of the words 'where any application for revision is made' and 'no further proceeding by way of revision' and 'shall be entertained by the High Court' as occurring in Sub-section (3) of Section 399, can have no other meaning but to abrogate the revisional power of this Court, in a case where such power has already been exercised by the Sessions Judge. It is thus the revisional jurisdiction and the exercise of the revisional power which have been abrogated, but not the inherent jurisdiction and the exercise of the inherent power. A distinction has to be made within these two jurisdicions and the exercise of these two powers. The policy behind both the sub-sections is to eliminate delay in the disposal of criminal cases which otherwise would have been the result of the right to file two revisions.

4. The question whether a fear has also been placed upon the High Court in the matter of suo motu exercise of revisional jurisdiction, does not fall for determination in the present proceedings, though that matter was also canvassed and debated. Sub-section (3) of Section 397 places a restriction on the revisionist and not on this Court when it says that if an application has been heard by the Sessions Judge, no further application by the same person shall be entertained by the High Court. It does not say that the High Court is precluded from acting suo motu. Again, under Sub-section (3) of Section 399, the bar has been placed upon the revisionist and not the High Court, when it says that no further proceeding by way of revision at the instance of such person shall be entertained by the High Court. The suo motu exercise of power has not thus been taken away by either of these two sub-sections. There may be a case where the Sessions Judge makes a revisional order, wholly without jurisdiction, or in a patently illegal manner, and the party aggrieved acquiesces to it, and does not come up to this Court because it cannot and still the case comes to the notice of this Court and it feels that if the order is allowed to stand, it will not subserve the ends of justice; and indeed, would be a negation of justice, can it be said in such a case that this Court cannot exercise its suo motu revisional jurisdiction and particularly so when the Sessions Judge is also an inferior criminal Court? The revisional jurisdiction of the Court is barred at the Instance of the party, where such a party has already exercised its option of one revision before the Sessions Judge, but the power to revise does not seem to be barred if it is exercised by the Court itself and not ,at the instance of that party. However, the matter being purely academic and not material for arriving at a decision in these proceedings, I do not wish to express any definitive opinion.

5. In any case, while the Sessions Judge has not, the High Court has, in addition to the revisional power under Sections 397 and 401, inherent power also under Section 482 to make such orders as are necessary for the ends of justice. No doubt, the power under Section 482 has to be exercised ex debito justitiae to do the real and substantial justice for the administration of which alone Courts exist. The power is of wide amplitude and the only fetter, limitation or inhibition imposed is that it can be exercised only in three contingencies, namely, (1) to make such orders as may be necessary to give effect to any order under the Code, or (2) to prevent abuse of the process of any Court, or (3) otherwise to secure the ends of justice. Within these three ambits, the power is unlimited, though it has to be exercised sparingly. The unlimited extent of the power will be apparent from the use of the words 'nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court.' Can it be said that the exercise of the inherent power will amount to virtual overriding of Sub-section (3) of Sections 397 and 399. The inherent power of this Court is not circumscribed by anything in the Code except in so far as there are specific sections covering the same subject-matter. If there are such sections which regulate a particular matter, to that extent, undoubtedly, the power to act under Section 482 will stand abrogated, but in the absence of such sections, Section 482 will come into play. Sections 397 and 399 only bar the revisional jurisdiction of this Court, if that jurisdiction has already been invoked by a party before a Sessions Judge but it does not and cannot bar any other jurisdiction of this Court which is inherent and not revisional. These are two different jurisdictions and it cannot be said that the inherent jurisdiction is the same, as the appellate or the revisional. The use of the words 'no further application' occurring in Sub-section (3) of Section 397 has the effect only of restricting the revisional power because the words 'no further application' can have reference only to an application in revision. Similarly, what is barred by Sub-section (3) of Section 399 is 'further proceeding by way of revision' and not an independent proceeding under Section 482. In short, I am of the view that the power under Section 482 stands intact and unaffected by Sub-sections (3) of Sectional 397 and 399.

6. The impugned order is a nullity and is, therefore, quashed. The learned Sub-Divisional Magistrate shall decide the jurisdictional question and the fate of the further proceeding shall depend upon that decision; that is to say, if he finds that such a dispute never existed or does not exist, he shall cancel his preliminary order and if, on the other hand, he comes to the contrary conclusion, he shall pass the final order. No further evidence shall be recorded and his decision either way, shall be based upon the existing evidence.


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