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Jaswant Singh and anr. Vs. Smt. Pritam Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberReported Criminal Revn. No. 158-R of 1965
Judge
Reported inAIR1967P& H482; 1967CriLJ1690
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 6, 6A, 17B, 118, 122, 143, 144, 145, 435, 435(1), 435(2), 435(3), 435(4), 437, 438, 438(1) and 438(3)
AppellantJaswant Singh and anr.
RespondentSmt. Pritam Kaur and ors.
Appellant Advocate Balbir Singh Bindra, Adv.
Respondent Advocate P.N. Aggarwal, Adv.
Cases ReferredDr Lallubhai Dayaram Bhatt v. Karimbhai
Excerpt:
.....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 exercising powers of superintendence under article 227 of the constitution. - the application was heard by the second additional sessions judge, who, on july 27, 1965, recommended interference by this court in the order of the executive magistrate to a certain extent explained by the learned judge in his order of reference. the reason why this has happened is that the draftsman only confined himself to so modelling sub-section (4) of the previous section 435 as to give it the shape of sub-section (6) in the new section 435 merely by substituting the words 'the chief judicial magistrate' for the words 'the district magistrate,..........by this court in the order of the executive magistrate to a certain extent explained by the learned judge in his order of reference.3. on the reference coming for hearing before jindra lal j., the learned counsel for the respondents relying on budh ram v. puran dass, 1966-68 pun lr 490 :(air 1967 punj 191), urged that the order of the learned sessions judge making reference of the case to this court was without jurisdiction, but the learned counsel for the petitioners contended otherwise. in these circumstances jindra lal j. was of the opinion that an important question as to the jurisdiction of a sessions judge in such circumstances has arisen and as it is likely to arise in future, so the answer to the question should be given by a larger bench. this is how the case comes before.....
Judgment:
ORDER

Jindra Lal, J.

1. Mr. Prem Nath Aggarwal for the respondent, relying on an unreported judgment of this Court by a learned Single Judge, contends that after amendments introduced by the Punjab Separation of Judicial and Executive Functions Act, 1964. the Sessions Judge has no jurisdiction to entertain a revision petition against an order by an Executive Magistrate under Section 145, of the Cr. P Code. That judgment was delivered by Khosla J. in Cr. Revision No. 877 of 1965. on the 24th March. 1966 :(AIR 1967 Punj 191). and it does support the submission of the learned counsel for the respondent

Learned counsel for the petitioner, however, contends that even after the above noted amendments, the power of the Sessions Judge under Section 435. Cr Procedure Code still remains intact, since an executive Magistrate does not cease to be an inferior Criminal Court, and consequently challenges the correctness of the decision in Cr. R. No. 877 of 1965 :(AIR 1967 Punj 191).

A large number of cases of this nature are likely to arise, and it is desirable that the matter is settled by a bigger bench finally.

Let this case be placed before my Lord the Chief Justice for constituting a larger Bench to hear this petition early.

OPINION

Mehar Singh, C.J., and D.K., Mahajan, J. (23--8-1966)

2. On a police report under Section 145 of the Code of Criminal Procedure, an Executive Magistrate, trying the case, made an order adverse to the petitioners, Jaswant Singh and Surjit Singh, and their father, Shivdev Singh, on May 24, 1965. It is not necessary to go into the details of that order for the present purpose The petitioners made a revision application against that order of the Executive Magistrate in the Court of the Sessions Judge at Ferozepore. The application was heard by the Second Additional Sessions Judge, who, on July 27, 1965, recommended interference by this Court in the order of the Executive Magistrate to a certain extent explained by the learned Judge in his order of reference.

3. On the reference coming for hearing before Jindra Lal J., the learned counsel for the respondents relying on Budh Ram v. Puran Dass, 1966-68 Pun LR 490 :(AIR 1967 Punj 191), urged that the order of the learned Sessions Judge making reference of the case to this Court was without jurisdiction, but the learned counsel for the petitioners contended otherwise. In these circumstances Jindra Lal J. was of the opinion that an important question as to the jurisdiction of a Sessions Judge in such circumstances has arisen and as it is likely to arise in future, so the answer to the question should be given by a larger Bench. This is how the case comes before this Bench.

3A. The Code of Criminal Procedure, 1898, suffered considerable amendment by reason of the enactment of the Punjab Separation of Judicial and Executive Functions Act, 1964 (Punjab Act 25 of 1964) which was brought into force on October 2. 1964, The reference to the Sections of the Code is, unless stated otherwise, to the thus amended Code. Section 6 deals with classes of Courts which are two, that is to say. (i) Courts of Session; and (ii) Courts of Magistrates. Section 6-A concerns the classes of Magistrates, and there is first. Judicial Magistrates, and secondly Executive Magistrates There are four types of Judicial Magistrates including Chief Judicial Magistrates at number one, and again there are four types of Executive Magistrates including District Magistrates at number one. and Sub-Divisional Magistrates at number two, but both classes of Magistrates come under the classification of 'Courts of Magistrates' in Section 6 Section 17-B reads

'17-B, Courts of Session and Court of Judicial and Executive Magistrates shall be Criminal Courts inferior to the High Court and Courts of Judicial and Executive Magistrates shall be Criminal Courts inferior to the Court of Session.'

The part of this section that needs emphasis for the present purpose is that the 'Courts of Judicial and Executive Magistrates shall be Criminal Courts inferior to the Court of Session' Sections 435 and 438 dealing with the matter of the revisional jurisdiction read as under:--

'435. (1) The High Court or any Sessions Judge or Chief Judicial Magistrate, 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 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 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) 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 correct ness, legality or propriety of any order recorded or passed and as to the regularity of air-proceedings of such subordinate Magistrate and may, when calling for such record, direct that the execution of any order be suspended and if the person is in confinement that he be released on bail on his own bond pending the examination of the record

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

(4) The High Court may call for and examine the record of any proceeding under Sections 118, 122. 143, 144 or 145, notwithstanding the fact that such proceeding was before an Executive Magistrate.

(5) If any application under Sub-section (1) has been made either to the Sessions Judge or the Chief Judicial Magistrate no further application shall be entertained by the other of them.

438. (1) The Sessions Judge or Chief Judicial 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, when such report contains a recommendation that a sentence or an order be reversed or altered, may order that the execution of such sentence or order be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond.

(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.

(3) On examining under Section 435 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.' It becomes clear from Sub-sections (2) and (3) of Section 435, and Sub-section (8) of Section 438 that with regard to orders in proceedings under Section 145 of the Code, or the other sections mentioned in those Sub-sections, jurisdiction to hear revisions has been given to the District Magistrate in regard to whose order the High Court has power of revision. The scheme of separation is that all judicial power in criminal cases, except in security cases, including cases under Section 145 of the Code, has passed on to Judicial Magistrates, but as regards security cases, the jurisdiction is to be with the Executive Magistrates. Sub-section (1) of Section 435 and so also Sub-section (1) of Section 438 give power to a Sessions Judge to interfere on revision as regards any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any inferior criminal Court within his jurisdiction. No doubt, unless there Is provision to the contrary, the jurisdiction specially and particularly vesting in the District Magistrate or the Sub-Divisional Magistrate, in the matter of hearing revisions from the orders of Executive Magistrates, having regard to Sub-sections (2) and (3) of Section 485, and Sub-section (3) of Section 438, will prevail over the general power of revision vesting in a Sessions Judge qua the orders and proceedings of Judicial Magistrate This obviously proceeds on the normal rule that a specific provision prevails as against a general provision in a statute. The question men is, is there anything special in the Code which leads to a conclusion different from that? There is first Section 17-B which in express words provides that even Courts of Executive Magistrates are criminal Courts inferior to the Court of Session. There is then the 'Explanation' with Sub-section (1) of Section 436 to the effect that

'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,' and the words 'all Magistrates' in this 'Explanation' include Magistrates of both classes in Section 6-A, that is to say both judicial Magistrates and Executive Magistrates. The expression 'all Magistrates' in this 'Explanation' cannot be read as confined to only 'Judicial Magistrates' as a class apart in Section 6-A. Apart from this, this interpretation is also available from another consideration, and that is that immediately after the Explanation' comes Sub-section (2) of Section 435 in which there is a separate and express reference to Executive Magistrates alone, and if the expression 'all Magistrates' in the 'Explanation' was intended to apply only to Judicial Magistrates, it could readily have been stated so, as has been done in regard to Executive Magistrates in Sub-section (2). There is thus no manner of controversy that the powers of revision of a Sessions Judge under Sub-section (1) of Section 435 extend to orders and proceedings of 'all Magistrates' On these two considerations it is obvious that Courts of all Magistrates are inferior criminal Courts so far as the jurisdiction of a Sessions Judge Is concerned. Thus even an order by an Executive Magistrate, such as the one in the present case under Section 146 of the Code, is open to consideration in revision by the Sessions Judge. The learned counsel for the respondents points out, first, that unlike Sub-section (4) of Section 435, before the amendment, the amended Sub-section (6) of S. 435 merely provides that where an application under Sub-section (1) of that section has been made either to the Sessions Judge or the Chief Judicial Magistrate, no further application shall be entertained by the other of them, but the learned counsel contends that where such an application is made under Sub-section (1) to the Sessions Judge and under Sub-section (2) to the District Magistrate, there is no provision that the other is not to entertain any such further application. This is so. The reason why this has happened is that the draftsman only confined himself to so modelling Sub-section (4) of the previous Section 435 as to give it the shape of Sub-section (6) in the new Section 435 merely by substituting the words 'the Chief Judicial Magistrate' for the words 'the District Magistrate, and he failed to advert that a similar concurrence of jurisdiction may arise so far as the Sessions Judge and the District Magistrate are concerned in the matter of hearing revision applications from orders or in proceedings of Executive Magistrates. This omission cannot justify an interpretation that the Courts of Executive Magistrates are not inferior Criminal Court to the Sessions Judge. Such an inference is not admissible in view of the positive and express statutory provisions in Section 17-B and 'Explanation' to Sub-section (1) of, Section 486. The learned counsel then points out that under Sub-section (4) of Section 435 the High Court has the power to examine (he record of the proceedings of' an Executive Magistrate, which of course includes also the District Magistrate and the Sub-Divisional Magistrate, and his argument is that if the Courts of the Executive Magistrate are inferior criminal Courts under a Sessions Judge, there was no necessity to provide separately for the powers of the High Court in this respect in Sub-section (4) of this section when it has not been so provided with regard to Judicial Magistrates and the Session Judge and. when the same is expressly covered by Section 436. It is apparent that Sub-section (4) of Section 435 has appeared only as a matter of abundant caution and nothing more

4. In so far as Budh Ram's case, 1966-68 Pun LR 490 :(AIR 1967 Punj 191) is concerned, it appears that the provisions of Section 17-B were not referred to before the learned Judge and although the 'Explanation to Sub-section (1) of Section 435 is reproduced in the judgment, because practically the whole of the section has been reproduced, but it does not appear that during the arguments before the learned Judge it was adverted to that the 'Explanation' refers to 'all Magistrates', and not to a particular class of Magistrates. These matters, so it appears, were not urged before the learned Judge The learned Judge appears to have been also influenced by the omission in the new and amended Section 435 of a provision saying that where from an order or proceedings of an Executive Magistrate a revision application has been entertained either by the Sessions Judge or the District Magistrate, no similar application shall be entertained by the other. It has already been shown that this omission does not justify an inference negatived by the express provisions of the Code. In other words. the decision in Budh Ram's case. 1966-68 Pun LR 490 :(AIR 1967 Punj 191) cannot be supported in view of the express provisions in this respect. The only other case to which the learned counsel for the respondents has made reference, in this respect, is Dr Lallubhai Dayaram Bhatt v. Karimbhai, AIR 1958 Bom 276 Now it appears from the judgment of the learned Judges that in the Bombay Act Section 17-B is the same as in the amended Code in this State, but it does not appear that the 'Explanation' with Sub-section (1) of Section 435, as it exists in the Code in this State, is in the Code in Bombay, or the corresponding provisions in Bombay The learned counsel for the respondents has stated that this is not so. If so, on this consideration alone Dr. Lallubhai Dayaram Bhatt's case, AIR 1958 Bom 276 is distinguishable Otherwise the learned Judges proceed to a view contrary to what has been expressed above on the rule of interpretation that a specific provision prevails over a general provision in a statute but ignore Section 17 B for while there is reference to that section is paragraph 2 of the judgment, there is no discussion, with regard to it, in paragraph 3 where the learned Judges come to the conclusions that Executive Magistrates are not criminal Courts inferior to the Court of Session. So that this case is not helpful either.

5. When the provisions of Sections 6 and 6-A are considered with Section 17-B, along with the 'Explanation' to Sub-section (1) of Section 435, no other conclusion is possible but that all Magistrates, whether Judicial or Executive, are inferior criminal Courts qua the Court of Session, and that this conclusion is not a writ weakened by the omission in Section 435 to say that where a revision application is entertained by a Sessions Judge or a District Magistrate, the other shall not entertain a similar further application. In this approach, the learned Second Additional Sessions Judge of Ferozepur has made reference in this case to this Court within jurisdiction.

6. The learned counsel for the respondents then says that this Bench should hear the reference on merits, but, the question of law having been answered, it is for the learned Single Judge to hear the reference as made by the learned Second Additional Sessions Judge of Ferozepur and to dispose of it on merits. The case will now go back for disposal of the revision application by the learned Judge.

(After the Division Bench gave their opinion, Jindra Lal, J. delivered the following judgment.)

Jindra Lal, J.

7. The learned Additional Sessions Judge, Ferozepore has forwarded the above revision to this Court with a recommendation that certain portions of the order made by the learned Executive Magistrate, Ferozepur, on May 24, 1965. may be set aside This matter originally came before me on the 7th of April. 1966. and due to certain objection taken by the learned counsel for the respondents, I referred the matter to a bigger Bench. My Lord the Chief Justice and Mr. Justice Mahajan have repelled the objection taken by the learned counsel for the respondents and the case has been sent back to me to be disposed of on merits

8. The present matter arises out of an application under Section 145, Criminal Procedure Code, made by the police The learned Magistrate came to the conclusion that there was no cause (conflict?) or dispute between the parties and yet directed the Station House Officer, Police Station Abohar, to assist the respondents for harvesting the crop The learned Additional Sessions Judge came to the conclusion that this order was made without any notice to the petitioner and was without jurisdiction. It has been pointed out that the order related to the gathering of the crop for Rabi 1965. Consequently it is asserted on behalf of the respondents that this petition should be dismissed :is having he come infructuous.

9. This petition has obviously become infructuous, but the order passed by the learned Magistrate was obviously wrong and without jurisdiction Consequently the impugned order to the extent where it directs the police officer to help the respondents in gathering the crop is set-aside To that extent the revision accented.


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