J.M. Sheth, J.
1. This is a reference made by the learned Additional Sessions Judge, Ahmedabad Rural, camping at Himatnagar, under Section 438 of the Criminal Procedure Code, recommending that the order passed by the learned Taluka Magistrate, Bhiloda in a Chapter Case No. 3 of 1966 on 23.9.1966, be get aside.
2. The facts leading rise to this reference are briefly stated as under.
A proceeding under Section 107 of the Criminal Procedure Code has been taken against one Pandya Mohanlal Ugreshawar of Bhiloda. That proceeding was pending in the Court of Taluka Magistrate, Bhiloda. In that proceeding, on behalf of the opponent, an application was given that the opponent be supplied the copies of the statements recorded by the Police Officer, who had initiated that proceeding during the inquiry that he made, before the witnesses were examined in the said proceeding before the Taluka Magistrate. The learned Taluka Magistrate directed the complainant to furnish the copies of such statements to the opponent.
3. Being dissatisfied with that order, the State filed a Criminal Revision Application No. 16 of 1966 in the Sessions Court at Himatnagar. The learned Additional Sessione Judge, being of an opinion that the provisions of Section 178(4) of the Criminal Procedure Code, could not have any application to a proceeding like the present proceeding and there being no investigation for a cognizable offence, meaning thereby that the aforesaid statements, having been not recorded in any such investigation, the State was not bound to furnish such copies to the opponent, has reported the matter to this Court under Section 438 of the Criminal Procedure Code for setting aside the impugned order.
4. The learned Government Pleader Mr. Sompura, appearing on behalf of the State, fairly invited my attention to the position that the learned Sessions Judge was not competent to entertain the aforesaid Criminal Revision Application, as the impugned order wag passed by the Taluka Magistrate. The correct forum was the Court of the District Magistrate. He urged that Sub-section (2) of Section 435 of the Criminal Procedure Code indicates that the District Magistrate or any sub divisional Magistrate, empowered by the State Government in this behalf, can call for and examine the record of any proceeding before any subordinate Executive Magistrate for the purposes 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 sub-ordinate Magistrates. Furthermore, Section 438 of the Criminal Procedure Code indicates that on examining under Section 435 or otherwise the record of any proceeding : (1) if such proceeding is in respect of an order made under Sections 118, 122, 143, 144 or 145 and the District Magistrate thinks that the order made in such proceeding should be reversed or altered, he shall report for the orders of the High Co art the result of such examination; (2) if such proceeding is in reaped; of an order made under any other Section then in the case of such proceeding 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. Section 6 of the Criminal Procedure Code states:
Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of criminal Courts in the State of Gujarat, namely;
(1) Courts of Sessions.
(2) Courts of Magistrates.
Section 6-A enumerates different classes of Magistrates, Taluka Magistrates, District Magistrates and Sub-Divisional Magistrates are included in that class (II) relating to Executive Magistrates. It is therefore, evident that Taluka Magistrates are Executive Magistrates.
Section 17 of the Criminal Procedure Code states that:
All Judicial Magistrates appointed under Sections 12 and 14...shall be subordinate to the Sessions Judge....
Section 17A of the Criminal Procedure Code states:
All Executive Magistrates appointed under Section 18 or 14 shall be subordinate to the District Magistrate; and every Taluka Magistrate shall also be subordinate to the Sub-Divisional Magistrate, subject, however, to the general control of the District Magistrate.
Section 17-B of the Criminal P.C. deals with a topic regarding Inferior Criminal Courts of Magistrates.
Courts of Sessions and Courts of Magistrates (including Courts of Presidency Magistrates) shall be Criminal Courts inferior to the High Court and Courts of Magistrates outside Greater Bombay shall be Criminal Courts inferior to the Court of Sessions.
Section 435(1) states:
The High Court or any Sessions Judge other than the Sessions Judge of the Court of Sessions for Greater Bombay 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....
Sub-section (4) of Section 435 states:
The High Court may call for and examine the record of any proceeding in respect of an order made under Sections 118, 122, 143, 144 or 145, notwithstanding the fact that such proceeding was before an Executive Magistrate or the Commissioner of Police as the case may be.
It is thus evident that the legislature has made a dear provision in regard to the powers vested in the High Court to call for and examine the record of any proceeding in respect of the orders referred to therein, even though such proceeding was before an Executive Magistrate. We have, therefore, to read all these sections and Sub-section (4) of Section 435 together and find out what was the real intention of the legislature in making this provision. This question arose before the Bombay High Court and a Division Bench of the Bombay High Court has referred to the provisions of Sections 485 and 17-B of the Criminal P.C. in the case of Lallubhai Dayaram Bhatt v. State of Bombay 59 Bom L R 942 : AIR 1988 Bom 276, and after referring to the relevant provisions of the Criminal Procedure Code, has made the following observations:
A Sessions Judge has no jurisdiction to entertain an application in revision against an order passed by an executive Magistrate under Section 145 of the Criminal P.C., 1898.
Such an application would lie to the High Court under Section 435(4) of the Code, but before a party approaches the High Court, he should first apply to the District Magistrate or the Sub-Divisional Magistrate, as the case may be, under Section 435(2) of the Code.
At p. 944 (of Bom L R) : (at p. 277 of AIR), Chainani J, (as he then was) speaking for the Division Bench, has made the following pertinent observations:
It seems to us that an application against an order made under Section 145, Criminal P.C., cannot lie to the Sessions Court, in view of the provisions of Sub-section (2) of Section 435, Criminal P.C., which provides for the record of any such proceeding being called foe and examined by a District Magistrate or a Sub-divisional Magistrate. As, therefore, this sub-section makes a specific provision as to the authority, which can examine the correctness, legality or propriety of an order made by an executive Magistrate under Section 145, Criminal P.C., the jurisdiction of the Sessions Judge is necessarily ousted. The ordinary rule of interpretation is that where there is a specific provision with regard to any matter, that must prevail over the general provisions made in the enactment.
We are accordingly of the opinion that a Sessions Judge has no jurisdiction to entertain an application in revision against an order passed by an executive Magistrate under Section 145, Criminal P.C.
Such an application, of course, lies to the High Court under Sub-section (4) of Section 435, Criminal P.C. But before a party approaches the High Court, he should first apply to the District Magistrate or the Sub-divisional Magistrate, as the case may be, under Sub-section (2) of Section 435 of the Criminal P.C.
In this case the petitioner hag not so fax applied to the District Magistrate. He should do so before coming to this Court. We will, therefore, discharge the rule, without expressing any opinion on the question whether the order, which has been challenged in this application, is correct or otherwise. The petitioner may, if he is so advised, apply to the District Magistrate under Sub-section (2) of Section 435, Criminal P.C.
I am in respectful agreement with these observations made. Furthermore, this judgment being a judgment of the Bombay High Court, given before the date of bifurcation, is binding upon me. I, therefore, hold that the Sessions Judge had no jurisdiction to entertain an application in revision against the impugned older, passed by an Executive Magistrate in a proceeding under Section 107 of the Criminal P.C. Reference, therefore, cannot be accepted. Bale should, therefore, be discharged. The State, if it is so advised, may apply to the District Magistrate or sub-divisional Magistrate under Sub-section (2) of Section 435, Criminal P.C.