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Balwant Rai S/O Amar Singh Vs. Chhangi Ram S/O Lala Dewa Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 318 of 1962
Judge
Reported inAIR1963P& H124; 1963CriLJ314
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 133, 137 and 367
AppellantBalwant Rai S/O Amar Singh
RespondentChhangi Ram S/O Lala Dewa Ram
Appellant Advocate Motiram Aggarwal, Adv.
Respondent Advocate S.C. Goyal, Adv.
Cases ReferredSurya Rao v. Sathiraju
Excerpt:
.....under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - without those reasons, the higher court would have nothing concrete before it and can at the best only speculate with regard to the reasons underlying the order -a course which is not desirable......same and re-writing the judgment in accordance with law. 2. on an application under section 133, code of criminal procedure, filed by balwant rai petitioner, magistrate 1st class, karnal, passed a conditional order on 3-5-1961 calling upon jhangi ram, respondent, to remove the upper storey of a building the ground-floor of which is occupies by the petitioner as a tenant. according to the petitioner, the upper storey was in a ruinous condition and was likely to fall and thereby cause injuries to persons living and carrying on business in the neighbourhood. the respondent preferred objections against the conditional order and denied the allegations of the petitioner that the upper storey was in a ruinous condition and was likely to fall. the learned magistrate recorded evidence of the.....
Judgment:
ORDER

H.R. Khanna, J.

1. In this criminal revision, recommendation has been made by the learned Additional Sessions Judge, Karnal, that the order of Magistrate 1st Class, Karnal dated 20-12-1961 be vacated and the case be remitted to him for deeming the same and re-writing the judgment in accordance with law.

2. On an application under Section 133, Code of Criminal Procedure, filed by Balwant Rai petitioner, Magistrate 1st Class, Karnal, passed a conditional order on 3-5-1961 calling upon Jhangi Ram, respondent, to remove the upper storey of a building the ground-floor of which is occupies by the petitioner as a tenant. According to the petitioner, the upper storey was in a ruinous condition and was likely to fall and thereby cause injuries to persons living and carrying on business in the neighbourhood. The respondent preferred objections against the conditional order and denied the allegations of the petitioner that the upper storey was in a ruinous condition and was likely to fall. The learned Magistrate recorded evidence of the parties and thereafter passed the final order on 20-12-1951 to the following effect:--

'I have considered the facts and circumstances of this case and I have also heard the parties. In my opinion, it is not necessary or expedient at this stage to order the respondent to demolish the building in question. The proceedings are, therefore, filed. The conditional order passed by me on 3-5-61 in this case will stand cancelled.'

The learned Additional Sessions Judge was of the view that the order did not comply with the requirements of section 367 of the Code of Criminal Procedure as it did not contain the facts of the case, points for determination, and the decision thereon or the reasons for the same. Recommendation was accordingly made for remitting the case to the Magistrate for re-writing the judgment.

3. I have heard the learned counsel for the parties and am of the view that the order dated 20-12-61 made by the learned Magistrate cannot be sustained. The order does not contain the facts of the case and does not specify the points for determination. Evidence of both the parties in this casa was recorded but there is no reference to it and it is not clear at all from order as to whether the learned Magistrate accepted the evidence of the petitioner or that of the respondent. The learned Magistrate has stated in the order that in his opinion it is not necessary or expedient to order the respondent to demolish the building in question. This obviously represants his decision. The reasons which weighed with the learned Magistrate in arriving at that decision are, however, not mentioned. In my opinion, the order made suffers from a fatal infirmity as the essential ingredients are missing, in it. It has to be remembered that the order was made in the course of judicial proceedings. An order finally deciding a case must be self-contained and should be what is called a speaking order. It must briefly give the facts of the case and embody the reasons for the decision arrived at lest it should be open to the charge that the judicial officer making the order did not apply his mind to the facts of the case or that his order is capricious and arbitrary, me correctness and legality of the order can be assailed in appropriate proceedings before the higher Court and We only method of ascertaining as to whether the order passed is correct and in accordance with law is to look at the reasons incorporated in that order. Without those reasons, the higher Court would have nothing concrete before it and can at the best only speculate with regard to the reasons underlying the order --a course which is not desirable. The reasons, which weigh with a Court in arriving at a decision, are a necessary concomitant of the judicial order passed by it and an order which does not embody those reasons should be deemed to be lacking in its essential requirements.

4. The learned counsel for the respondent has referred to a case Surya Rao v. Sathiraju, reported in AIR 1948 Mad 510, wherein it has been held that an order made in proceedings under Section 145, Code of Criminal Procedure, is not a judgment as mentioned in Section 367 of the Code of Criminal Procedure. The question, which arose for determination in that case was whether the successor of a Magistrate could pronounce orders written and signed by his predecessor in proceedings under Section 145, code of Criminal Procedure. The question as to whether or not the order under Section 145 should contain reasons in support of it did not arise for determination in that case. In my opinion, even if a final order made in proceedings under Section 133, Code of Criminal Procedure, is not a judgment as mentioned in Section 367 of the Code of Criminal Procedure, the requirement that it should contain the reasons in support of It cannot be done away with. 1 accordingly accept the recommendation of the learned Additional Sessions Judge and vacate the order dated 20-12-1961 of the learned Magistrate and remit the case to mm for deciding the same after re-writing the Judgment.


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