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Mst. Shankari Vs. Girdharilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1973()WLN124
AppellantMst. Shankari
RespondentGirdharilal and ors.
Excerpt:
.....learned sessions judge therefore exercised the power not vested in him when he directed the city magistrate to take possession of the disputed property and keep it into his custody till the decision of the revision petition. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen..........their respective claim for possession over the 'baithak'. by his order dated 30-10-1972. the learned city magistrate, bharatpur declared the possession of mst. shankari, rameshchand and maheshchand over the disputed 'baithak' on the date of the preliminary order. in that very order, he directed the sho to hand over possession of the 'baithak' to smt. shankari. rameshchand and maheshchand. the sho police station, kotwali bharatpur. accordingly handed over possession of the 'baithak' to mst- shankari and others on 31-10-1972. the opposite party, namelv. girdharilal filed a revision petition on 1-11-1972 before the learned sessions judge, bharatpur against the order of the citv magistrate dated 30-10-72 and alsopraved for direction to the city magistrate that the execution of the.....
Judgment:
ORDER

Sohan Nath Modi, J.

1. This revision application arises out of the proceedings under Section 145 Criminal P. C.

2. There was a dispute regarding possession of 'baithak' and proceedings under Section 145 Criminal P. C. were taken in respect thereof. As there was imminent danger of breach of the peace the 'baithak' in dispute was attached and put into the possession of the Police Station, Kotwali, Bharatpur- Both the parties put in their affidavits regarding their respective claim for possession over the 'baithak'. By his order dated 30-10-1972. the learned City Magistrate, Bharatpur declared the possession of Mst. Shankari, Rameshchand and Maheshchand over the disputed 'baithak' on the date of the preliminary order. In that very order, he directed the SHO to hand over possession of the 'baithak' to Smt. Shankari. Rameshchand and Maheshchand. The SHO Police Station, Kotwali Bharatpur. accordingly handed over possession of the 'Baithak' to Mst- Shankari and others on 31-10-1972. The opposite party, namelv. Girdharilal filed a revision petition on 1-11-1972 before the learned Sessions Judge, Bharatpur against the order of the Citv Magistrate dated 30-10-72 and alsopraved for direction to the City Magistrate that the execution of the impugned order be suspended till the decision of the revision petition. This application for interim order was challenged by Mst. Shankari and others on the ground that they had already obtained possession of the disputed 'baithak' on 31-10-1972 from the SHO Police Station, Kotwali. Bharatpur. The learned Sessions Judge on 10-11-1972 allowed the application filed by Girdharilal and suspended the execution of the order dated 30-10-1972. He further ordered that the City Magistrate shall take possession of the disputed property from Mst. Shankari and others and keep it into his custody or with any other officer appointed by him in this behalf until final decision of the revision petition. It is against this order of the learned Sessions Judge dated 10-11-1972 that the petitioner Mst. Shankari has preferred this revision petition.

3. Section 435(i) Criminal P. C. provides that the High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate may call for and examine the record of any proceeding before any inferior 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. This section confers the power to suspend the execution of any sentence or order till the decision of the revision petition. After a declaratory order under Section 145 Criminal P- C. is given effect to by releasing the property from attachment and allowing the successful party to set into possession, there remains nothing to suspend the execution of the order passed under Section 145 Criminal P. C. Section 435 Criminal P. C. in such a case does not empower the Court to re-attach the property and dispossess the successful party. That can only be done if the revision petition is decided against that party. The learned Sessions Judge therefore exercised the power not vested in him when he directed the City Magistrate to take Possession of the disputed property and keep it into his custody till the decision of the revision petition. The order under revision dated 10-11-1972 is therefore set aside and as the possession had already been delivered to the petitioner Mst. Shankari and others, there is no question of suspension of the final order passed under Section 145 Criminal P. C.

4. The result is that the revision application is allowed and the impugned order dated 10-11-1972 is set aside.


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