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Sanihi and ors. Vs. Tirath Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1959CriLJ321
AppellantSanihi and ors.
RespondentTirath Ram
Cases ReferredPolubha Vajubha v. Tapu Ruda
Excerpt:
- .....is a reference made by the learned sessions judge jammu recommending that the order passed by the trial magistrate dated 10-6-l955 be set aside and the application of one tirath ram be dismissed. the learned sessions judge was of the view that as the preliminary order passed by the trial magistrate was not in conformity with the provisions of section 145 of the criminal procedure code therefore whole of the proceedings were vitiated and his order dated 10-6-1.955 be set aside.2. it is true that there are decisions of this court which support the view taken by the learned sessions judge but the counsel appearing on behalf of tirath ram non-applicant cited some rulings, in which a contrary view had been taken, before a single bench of this court and, therefore, this case was referred to.....
Judgment:

J.L. Kilam, J.

1. This is a reference made by the learned Sessions Judge Jammu recommending that the order passed by the trial Magistrate dated 10-6-l955 be set aside and the application of one Tirath Ram be dismissed. The learned Sessions Judge was of the view that as the preliminary order passed by the trial Magistrate was not in conformity with the provisions of Section 145 of the Criminal Procedure Code therefore whole of the proceedings were vitiated and his order dated 10-6-1.955 be set aside.

2. It is true that there are decisions of this Court which support the view taken by the learned Sessions Judge but the counsel appearing on behalf of Tirath Ram non-applicant cited some rulings, in which a contrary view had been taken, before a Single Bench of this Court and, therefore, this case was referred to the Division Bench for an authoritative pronouncement.

3. If has been argued on behalf of Tirath Ram opposing the reference that the proceedings tinder Section 145 Cr. P.C. should not be quashed inasmuch as there has been no prejudice caused to the opposite party by the preliminary order not being drawn in accordance with the provisions of Section 145. Our attention has been drawn to a Full Bench Ruling of the Allahabad High Court, Kapoor Chand v. Suraj Prasad AIR 1933 All 264 (A) wherein it is laid down that the jurisdiction of a Magistrate to take action under Section 145, Criminal P. C. arises from the fact that he has received certain information and that he is satisfied as to the truth of that information.

The jurisdiction of the Magistrate does not depend on how he proceeds. If he has jurisdiction, he is not deprived of jurisdiction merely because 'his procedure is erroneous or defective. Hence the omission on the part of the Magistrate to follow certain directions contained in the Code, although some of these directions may be more important than others, cannot be said to deprive him of jurisdiction. The object of procedure is to enable the Court to do justice, but if, in spite of even a total disregard of the rules of procedure, justice has been done, there would exist no necessity for setting aside the final order which is just and correct simply because the procedure adopted was wrong'

The same view has been taken by a Division Bench of the Saurashtra High Court in Polubha Vajubha v. Tapu Ruda AIR 1956 Sau. 73 (B) in which their Lordships have laid down that where the cognizance of the case has once been taken and the case has proceeded to termination, the failure to draw up a formal preliminary order under Section 145(1) does not vitiate the result unless miscarriage of justice has been caused thereby.

4. In the present case the counsel supporting the reference has not been able to show that any miscarriage of justice has been caused to his client by the fact that the preliminary order was not drawn up strictly in accordance with the provisions of Section 145. The parties were present before the trial Magistrate. They led evidence and no objection was taken by any party that the preliminary order was defective. In these circumstances it will not be proper to quash the proceedings and allow the parties to agitate the matter once again in the trial court which will involve them in unnecessary expense and inconvenience.

5. We disallow the. reference and send the file back to the Sessions Judge who will dispose of other points taken by the applicant in the revision application before him.


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