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Budh Ram and ors. Vs. Puran Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 877 of 1965
Judge
Reported inAIR1967P& H191
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 435(1), 438(3) and 439; Punjab Separation of Judicial and Executive Functions Act
AppellantBudh Ram and ors.
RespondentPuran Dass and ors.
Appellant Advocate P.S. Mann, Adv.
Respondent Advocate A.S. Anand, Adv. and; S.S. Sandhawalla, Adv. General
DispositionPetition dismissed
Excerpt:
.....for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction 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..........is: whether from the final order of magistrate (executive) in proceedings under section 145 of the code of criminal procedure, revision lies to the sessions judge.2. the facts were these :3. on the demise of one nathu (dying issueless) budh ram etc. posing as claimants sought to disturb the possession of the tenants on the land owned by said nathu.4. the tenants apprehending breach of peace moved magistrate 1st class, executive, ambala under section 145 of the code of criminal procedure. the land in question was in the first instance attached and finally after due process and proceedings it was held that the tenants (ist party) were in possession of the land in dispute at all relevant times and were entitled to possession thereof until evicted therefrom in due course of law.5. the.....
Judgment:
ORDER

R.P. Khosla, J.

1. In this petition for revision the short point that requires determination is: whether from the final order of Magistrate (Executive) in proceedings under Section 145 of the Code of Criminal Procedure, revision lies to the Sessions Judge.

2. The facts were these :

3. On the demise of one Nathu (dying issueless) Budh Ram etc. posing as claimants sought to disturb the possession of the tenants on the land owned by said Nathu.

4. The tenants apprehending breach of peace moved Magistrate 1st Class, Executive, Ambala under Section 145 of the Code of Criminal Procedure. The land in question was in the first instance attached and finally after due process and proceedings it was held that the tenants (Ist party) were in possession of the land in dispute at all relevant times and were entitled to possession thereof until evicted therefrom in due course of law.

5. The claimants, the opposite party, challenged the said order of the learned Magistrate (Executive) by way of revision in the Court of Session. Upon the petition coming up for hearing before Additional Sessions Judge, Ambala, the preliminary point raised that the Sessions Judge had no jurisdiction to hear the revision from Magistrate Executive) as respects order in proceedings under Section 145 of the Code of Criminal Procedure prevailed, and in the result, the petition without further going into the merits was dismissed. The said dismissal order by the learned Additional Sessions Judge has occasioned the instant revision petition.

6. The reading of the amended relevant provisions of the Code of Criminal Procedure, presently to be noticed, undoubtedly point to the conclusion that the forum for the revision from the Magistrate (Executive) was the Court of District Magistrate. As would appear herein, the jurisdiction in that behalf of the Sessions Judge had been taken away.

7. It would further be apparent that the Punjab Separation of Judicial and Executive Functions Act (No. 25 of 1964) by which revisional sections of the Code of Criminal Procedure stood amended has in view as respects cause under Section 145 of the Code of Criminal Procedure, Executive Magistrate as the Court of first instance and for revision the Court of the District Magistrate.

8. Section 435 of the Code of Criminal Procedure as it stood before the amendment was in the following terms :

'435(1). The High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the State in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his 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

Explanation.--All Magistrates, 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 437.

(2) If any Sub-divisional Magistrate acting under Sub-section (1) considers that any such finding, sentence or order is illegal, or improper, or that any such proceedings are irregular, he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate.

(4) 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.'

9. These provisions as of old yielded two apparent inferences : e. g., that the Sessions Judge and the District Magistrate had concurrent revisional jurisdiction and that if one of them was moved, revision to the other was barred.

10. By Section 64 of the Punjab Separation of Judicial and Executive Functions Act, 190 I in Sub-section (1) of Section 435, for the words 'or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf', the words 'or Chief Judicial Magistrate' have been substituted. From these provisions which in effect relate to the Judicial functions of purely judicial bodies, the executive authorities (District Magistrate or Sub-divisional Magistrate) are shut out. Sub-section (2) had been reformed and rearranged to invest the District Magistrate with executive powers and province over functions of Subordinate Executive Magistrates. The added Sub-section (3) emphasized the said over-all revisional supervisory power of the District Magistrate. The said subsections are worded:

'Sub-section (2). The District Magistrate or any Sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any subordinate Executive Magistrate for the purpose of satisfying himself as to the correctness, legality or propriety of any order recorded or passed and as to the regularity of any proceedings of such subordinate Magistrate and may when calling for such record, direct that

(3) If any Sub-divisional Magistrate acting under Sub-section (2) considers that any such proceeding or order is illegal or improper he all forward the record with such remarks thereon as he thinks fit to the District Magistrate.

(4) *** *** ***

(5) *** *** ***

11. The provisions of original Section 438 of the Code of Criminal Procedure regarding reporting a case to the High Court on revision also went under change. Before amendment it read:

'438(1) The Sessions Judge or District Magistrate may if he thinks fit, on examining under Section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and

(2) An Additional Sessions Judge shall have and may' exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge.'

12. Section 67 of the Punjab Separation of Judicial and Executive Functions Act, 1964 amended Sub-section (1) of Section 438 of Code of Criminal Procedure in that, for the words .'or District Magistrate' the words 'or Chief Judicial Magistrate' were substituted and after Sub-section (2) the following Sub-section numbered as (3) was added :

'(8) On examining under Section 485 or otherwise the record of any proceeding--

(1) if such proceeding is in respect of an order made under Section 118, Section 122, Section 143, Section 144 or Section 145 and the District Magistrate thinks that the order made in such proceeding should be reversed or altered, he shall report for the order of the High Court the result of such examination;

(2) if such proceeding is in respect of an order made under any other section, then in the case of such proceedings the District Magistrate may, subject to the provisions of Sub-section (2) of Section 436, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428.'

13. The examination of the said amendments set out above leads to the inference that for purposes of Section 435(1) of the Code of Criminal Procedure the District Magistrate or 'Sub-divisional Magistrate specially empowered have been replaced by Chief Judicial Magistrate. The District Magistrate or Sub-divisional Magistrate specially empowered have been invested with exclusive revisional jurisdiction as respects proceedings convened before the Magistrate (Executive). It is further clear from the added Sub-section (3) to Section 435 that if the powers of revision were exercised by the Sub-divisional Magistrate he had to forward the records with his remarks to the District Magistrate.

14. Reading of amendments incorporated in Section 438 of the Code of Criminal Procedure by Section 67 of the Separation of Judicial Executive Functions Act further showed that in matters falling under Sections 118, 122, 143, 144 or 145 the revisional Court in view was that of District Magistrate. It is significant that in the added Sub-section (3) to Section 4.38, Criminal Procedure Code, there is no mention of Sessions Judge. The purpose and the scheme of Act 25 of 1964 also indicated that complete separation of Judicial and Executive functions was intended.

Proceedings under Section 145 of the Code of Criminal Procedure partake the nature of the executive functions and have advisedly been assigned to the executive Magistracy at all levels below the High Court. Therefore, the conclusion that for revision from an order of the Magistrate Executive in matters covered under Sections 118, 122, 143, 144 or 145 and also for reporting the same for the order of the High Court the forum after the operation of the Punjab Seperation of Judicial and Executive Functions Act 1964 has to be the Court of District Magistrate is inescapable.

15. I am thus of the view that the learned Additional Sessions Judge was right in dismissing the petition on the ground that the revision did not lie to him. The impugned order is not assailable and must, therefore, sustain.

16. In the result, this petition fails and is dismissed.


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