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Ramachandra Puja Panda Samant Vs. Jambeswar Patra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1975CriLJ1921
AppellantRamachandra Puja Panda Samant
RespondentJambeswar Patra and anr.
Excerpt:
.....immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the explanation merely clarifies that all magistrates, whether executive or judicial, shall be deemed to be inferior to the sessions judge for purposes of sections 397 and 398. the constitutional position being well settled that all magistrates are inferior to the high court and the high court has got superintending and supervisory jurisdiction under article 227 of the constitution, there was no necessity for the legislature to say in the explanation that all..........petitioner to be in possession of the disputed properties on the date of the preliminary order. a criminal revision filed by the opposite parties was allowed on 10-12-1974 by the sessions judge, puri, who declared that the opposite parties were in possession of the disputed lands on the date of the preliminary order. the petitioner has filed this criminal revision against the order of the sessions judge.2. mr. p.v. ramdas raised the following contentions in opposition:(i) a second criminal revision does not lie to the high court against an order of the sessions judge passed in revision.(ii) a sessions judge is not a court inferior to the high court within the meaning of section 397(1) of the code of criminal procedure, 1973 (hereinafter to be referred to as the new code).(iii) on.....
Judgment:

G.K. Misra, C.J.

1. Petitioner is the first party member in a proceeding under Section 145, Criminal P. C. Second party members are the opposite parties. The subject-matter of dispute constitutes plot No. 1728 with an area of 0.51 acre and plot No. 1806 with an area of 2.24 acres, in all 2.75 acres in Mouza Beruhan, Khata No. 28, P. S. Gope, in the district of Puri.

The case of the first party is as follows; The disputed lands belonged, to Lord Jagannath of Puri. The petitioner was the Sebayat-Marfatdar of the diety and was looking after the disputed properties. Nilamani Patra, deceased father of the opposite parties was the tenant of the disputed lands. He defaulted in payment of rent. The petitioner filed Rent Suit No. 1094 of 1944-45 against Nilamani and obtained a decree. In Execution Case No. 1322 of 1945-46 the disputed lands were put to sale. The petitioner purchased the same in court auction and obtained delivery of possession through court on 28-11-1946. Since then till the date of attachment in the proceeding under Section 145, Criminal P. C. the petitioner was in Khas possession. Opposite parties without having any manner of right or interest attempted to forcibly and unlawfully remove the paddy crop raised by him. Accordingly he initiated the proceeding under Section 145, Criminal P. C.

Opposite parties admit that their father who was an occupancy tenant under Lord Jagannath was evicted in execution of the rent decree for non-payment of rent and that the petitioner purchased the disputed properties in court auction and that he obtained delivery of possession on 28-11-1946. They, however, assert that after delivery of possession Nilamani was allowed by the petitioner to cultivate the disputed lands as a Bhag tenant. After the death of Nilamani opposite parties are continuing in cultivation of the disputed lands as Bhag tenants and by the date of attachment they were in possession. They had raised the standing crop as in previous years.

On 15-12-1973 the proceeding was initiated on an application of the petitioner supported by an affidavit. Preliminary order was passed on that very day. On 10-9-1974 the final order was passed declaring the petitioner to be in possession of the disputed properties on the date of the preliminary order. A criminal revision filed by the opposite parties was allowed on 10-12-1974 by the Sessions Judge, Puri, who declared that the opposite parties were in possession of the disputed lands on the date of the preliminary order. The petitioner has filed this criminal revision against the order of the Sessions Judge.

2. Mr. P.V. Ramdas raised the following contentions in opposition:

(i) A second criminal revision does not lie to the High Court against an order of the Sessions Judge passed in revision.

(ii) A Sessions Judge is not a court inferior to the High Court within the meaning of Section 397(1) of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the new Code).

(iii) On merits, the Sessions Judge reached the correct conclusion on facts.

3. To appreciate the first two contentions Section 397 (1) and (3) and Section 399 (1) and (3) may be extracted:

397.(1) The High Court or any Sessions Judge may 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

399. (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

4. Section 397(1) prescribes that the High Court may call for and examine the record of any proceeding before any inferior Criminal Court. The word 'inferior' does not carry with it any stigma or any suggestion that the Court is under the administrative orders of the superior Court. Inferior Criminal Court only means judicially inferior to the High Court. A Court is inferior to another Court when an appeal lies from the former to the latter. (See AIR 1949 Bom 29 : (1948) 49 Cri LJ 593, Krishnaji Vithal V. Emperor).

The Sessions Judge is, therefore, inferior to the High Court within the meaning of Section 397(1) and the High Court may call for and examine the record of any proceeding before the Sessions Judge. The High Court can, therefore, call for the records of a criminal revision disposed of by the Sessions Judge.

Mr. Ramdas contends that the Explanation appended to Section 397(1) runs counter to the aforesaid construction. The Explanation merely clarifies that all Magistrates, whether Executive or Judicial, shall be deemed to be inferior to the Sessions Judge for purposes of Sections 397 and 398. The constitutional position being well settled that all Magistrates are inferior to the High Court and the High Court has got superintending and supervisory jurisdiction under Article 227 of the Constitution, there was no necessity for the Legislature to say in the Explanation that all Magistrates are inferior to the High Court. The Explanation does not, therefore, in any way affect our conclusion that the Sessions Judge is a Criminal Court inferior to the High Court within the meaning of Section 397(1).

5. The next question for consideration is whether a criminal revision to the High Court lies against an order of the Sessions Judge passed in a revision. Section 397(3) lays down that if an application under Section 397 has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

Section 399 deals with Sessions Judge's powers of revision. Sub-section (3) thereof provides that where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

6. It would appear from Nandlal's Criminal Procedure Code, Second Edition, Vol. ITT, p. 2520 that the Joint Committee of the Parliament re-drafted Clauses 407 to 412 of the Bill so as to incorporate therein the following:

The order of the Sessions Judge in revision should be final and no further revision by the High Court should be permitted.

It appears clear therefrom that the Joint Committee suggested that no second revision would lie to the High Court if the Sessions Judge has already disposed of a revision and the order of the Sessions Judge would be final.

7. The language of Section 397(3) and Section 399(3), however, leads to a different conclusion. The statute did not adopt the language used by the Joint Committee of the Parliament. The prohibition is confined to a second revision application filed by the same person. In Section 397(3) the crucial words are 'no further application by the same person shall be entertained by the other of them.' Similarly, the material clause in Section 399(3) is 'no further proceeding by way of revision at the instance of such person shall be entertained.'

It is thus clear that the bar of a second revision was only confined to cases where the criminal revision was dismissed by the Sessions Judge. At the instance of the person who lost the criminal revision before the Sessions Judge no revision to the High Court lies.

An illustration would make the position clear. A proceeding under Section 145, Criminal P. C. between X and Y terminated before the Magistrate in favour of X. The criminal revision of Y before the Sessions Judge was dismissed. A criminal revision before the High Court at the instance of Y shall not be entertained.

In the same illustration if Y's criminal revision before the Sessions Judge was allowed, a criminal revision to the High Court against the order of the Sessions Judge at the instance of X is maintainable. This is for the simple reason that the second criminal revision before the High Court is not at the instance of such person who filed the criminal revision before the Sessions Judge.

On the language of Section 397(3) and Section 399(3) conclusion is irresistible that a second revision at the instance of a successful party before the Magistrate who lost the revision before the Sessions Judge lies.

Both the preliminary objections raised by Mr. Ramdas have no substance and are rejected.

8. We were taken through affidavits and several documents filed in Court, The learned Sessions Judge in a careful judgment has discussed them at length in paragraphs 6 to 10 of his judgment. After going through the relevant materials on record and the judgment of the learned Sessions Judge and after hearing Mr. Harichandan at length we are satisfied that the Sessions Judge reached the correct conclusion that the opposite parties were the Bhag tenants who were in possession of the disputed lands on the date of the preliminary order. The judgment of the learned Sessions Judge is not assailable on merits.

9. In the result, the revision fails and is dismissed.

P.K. Mohanti, J.

10. I agree.


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