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Mina Ram and ors. Vs. Jivlu Budhu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1974CriLJ718
AppellantMina Ram and ors.
RespondentJivlu Budhu
Cases Referred and Krishnamurthy v. The State of Mysore
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide..........before the sub-divisional magistrate, rampur. as evident from the order-sheet written by the learned magistrate, the petitioners were found absent on 2nd june, 1972 and their revision petition was dismissed for non-appearance of the petitioners. against this order of the learned magistrate, the present revision petition has been filed by mina ram and others. they have preferred it under article 227 of the constitution, read with sections 561-a and 439 of the code of criminal procedure.3. while dealing with the petition under article 227 which refers to the power of superintendence which this court exercises over subordinate tribunals, the real purpose is to ask the tribunals to act within the sphere of their jurisdiction and further to make them exercise their jurisdiction in case.....
Judgment:
ORDER

D.B. Lal, J.

1. Mina Ram and three others have been convicted by the Nyaya Panchayat, Dhar Gaura, Tehsil Rampur, and have been sentenced to pay fine. The case related to Sections 427, 223 and 504 of the Indian Penal Code. The complainant was Jivlu who is respondent in this case. There was also a cross-complaint filed by Kalu Ram one of the petitioners, against Jivlu and that complaint also related to the same occurrence. Formerly the two complaints came UP for trial before the Magistrate Second Class, Rampur, who transferred them for disposal to the said Nyaya Panchayat.

2. Instead of proceeding with the complaint filed by Kalu Ram, for some reason or the other, the Nyaya Panchayat preferred to decide the complaint of Jivlu in the first Instance. After recording some evidence, the Panchayat came to the conclusion that Mina Ram and three others have committed the offences imputed against them and have been sentenced to pay individual amounts of fine. Mina Ram and others after being convicted by the Nyaya Panchayat. filed a revision before the Sub-Divisional Magistrate, Rampur. As evident from the order-sheet written by the learned Magistrate, the petitioners were found absent on 2nd June, 1972 and their revision petition was dismissed for non-appearance of the petitioners. Against this order of the learned Magistrate, the present revision petition has been filed by Mina Ram and others. They have preferred it under Article 227 of the Constitution, read with Sections 561-A and 439 of the Code of Criminal Procedure.

3. While dealing with the petition under Article 227 which refers to the power of superintendence which this Court exercises over subordinate tribunals, the real purpose is to ask the tribunals to act within the sphere of their jurisdiction and further to make them exercise their jurisdiction in case they are found deficient in exercising powers conferred upon them by law. If the Sub-Divisional Magistrate has failed to exercise jurisdiction which vested in him under law and he makes an order which is avowedly illegal, his decision can be set right by making a proper order under Article 227. Similarly, under Sections 435 and 439 of the Code of Criminal Procedure, the correctness, legality or propriety of the order of the Magistrate are questions to be decided and in case the Magistrate is held to have wrongly exercised his jurisdiction or failed to exercise jurisdiction vested in him under law, the proceedings can be corrected. In the present case, it is abundantly clear that the learned Magistrate was not authorized to dismiss the revision petition for default of appearance on the part of the petitioners. In criminal matters, such a dismissal of appeal or revision, for default of parties, is not permissible. Criminal cases which deal with offences stand on a different footing than civil disputes. The State is always interested in criminal disputes, inasmuch as the* offences are against the State or against public order or public justice. and Criminal Courts are meant to maintain principles of public justice. That being the, position, criminal appeals and criminal revisions cannot be summarily disposed of like civil matters under an excuse that the complainant or the prosecution happened to be absent on a date fixed by the Court Whenever private complaints are dismissed for default of appearance, the order is made under specific provisions contained in the Code of Criminal Procedure. The facts of the present case are different and those provisions of the Code of Criminal Procedure could not be invoked by the learned Magistrate.

4. The learned Counsel for the petitioner relied on two cases : Roora v. Emperor AIR 1930 Lah 659 (1) : 31 Cri LJ 979 and Krishnamurthy v. The State of Mysore (1965) 2 Cri LJ 568 (Mys). Both these cases dealt with criminal appeals, but that would not make any difference. It was held that the Code of Criminal Procedure does not permit the dismissal of appeal on the ground that the appellant does not appear to support it. The Court was bound to peruse the record and pass an order. To me, therefore, it appears that the order of the learned Magistrate was manifestly incorrect and was rather illegal.

5. The result is that the petition is allowed and the order dated 2nd June, 1972 of dismissal of the revision petition for default of the petitioners recorded by the learned Magistrate is set aside. The revision petition is remanded to the Sub-Divisional Magistrate, Rampur, to rehear it on merits after giving opportunity to the petitioners to appear before him.


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