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Hardeva Vs. State Through Mst. Lali and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Ref. No. 141 of 1958
Judge
Reported inAIR1959All781; 1959CriLJ1389
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 369 and 435
AppellantHardeva
RespondentState Through Mst. Lali and ors.
Appellant AdvocateN.S. Singhal, Adv.
Respondent AdvocateN.A. Kazmi, Adv.
Excerpt:
criminal - jurisdiction - sections 435 and 369 of criminal procedure code,1898 - magistrate without jurisdiction passed a correct order can be maintained by court of revision - held, can be maintained by the court of revision as its own order - case consigned to the record room and not finally disposed of - always open to the court to revive it when occasion arise. - .....he, therefore, directed the parties to go to the civil court, and consigned the record to the record room. this order was passed on 26-12-1956 and was passed apparently under section 146, cr. p. c. as it stood before the amendment (upto 26-12-1956 the section had not been amended) and the record was consigned to the record room.under the amended section the magistrate should have drawn up a statement of the facts of the case and forwarded the record and the proceedings to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject-matter of the dispute at the date of the order as explained in sub-section (4), section 145, cr. p. c., and he was to direct the parties to appear before the civil court on a date to.....
Judgment:
ORDER

V.D. Bhargava, J.

1. This is a reference by the Additional Sessions Judge against an order passed by a Magistrate of Saharanpur.

2. It appears that one Hardeo for himself and for his brother filed an application on 10-4-1956 against Smt. Lalli, Sukhbir. Ranbir and Balbir opposite parties alleging that he and his brothers were the sirdars of the plots and were in actual possession of it and they had been cultivating the sir for the last ten years. The opposite parties without any right wanted to dispossess them illegally and with force and they had harvested the crop. Hence an application was filed under Section 145, Cr. P. C. as there was danger of breach of the peace.

A report was called for from the station officer and the evidence of both the parties was recorded. After going through the evidence the Magistrate came to the conclusion that it was not possible for him to come to any conclusion as to which of the parties was in possession within two months of the date of dispossession or at the time of attachment. He, therefore, directed the parties to go to the Civil Court, and consigned the record to the record room. This order was passed on 26-12-1956 and was passed apparently under Section 146, Cr. P. C. as it stood before the amendment (upto 26-12-1956 the section had not been amended) and the record was consigned to the record room.

Under the amended section the Magistrate should have drawn up a statement of the facts of the case and forwarded the record and the proceedings to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject-matter of the dispute at the date of the order as explained in Sub-section (4), Section 145, Cr. P. C., and he was to direct the parties to appear before the Civil Court on a date to be fixed by it.

3. Since the Magistrate had not acted in accordance with Section 146, Cr. P. C. an application was made by the applicant drawing the attention of the learned Magistrate to that section and pointing out that he should have referred the case with a statement of the case under the amended Section 146. The learned Magistrate withdrew that order and thereafter amended his order and directed that the case should be sent to the Civil Court with a statement of the case. Against this order an application in revision was filed by the opposite party. The learned Sessions Judge was of opinion that once that order had been passed by the Magistrate ordering the record to be consigned to the record room he had become functus officio. He had no jurisdiction to amend his order.

4. I am not sure if the Magistrate had become functus officio. He had not finally disposed, of the case. The case was still pending though he had sent the case to the record room. If a case is consigned to the record room and has not been finally disposed of, it is always open to him to revive it if and when occasion arises. It is only when the Magistrate has finally disposed of the case that he becomes functus officio. The Civil Court had to decide the question of title in favour of one party or the other and thereafter the Magistrate had torevive further proceedings and would have to direct the delivery in accordance with its judgment. Therefore I think the Magistrate was justified in correcting his own mistake.

5. Secondly, even if the Magistrate had no jurisdiction and if his order was a correct order that order could have been maintained by the Additional Sessions Judge, as his own order, and in the circumstances even if the Magistrate had no jurisdiction to amend his order, the amended order being the correct order which should have been passed, I hereby maintain it as an order of this Court.

6. The Magistrate shall stay further proceedings, and if he had not already forwarded the case with a statement he shall do so now forthwith so that the case may be decided under Section 146, Cr. P. C.

7. Let the record be sent to the Court belowso that further proceedings may be resumed.


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