Ghulam Rasool Dar and Others vs State and Others

M.L. Bhat, J.—These two revision petitions came up for consideration before a Single Judge of this Court Anand J. (as his Lordship then

was). His Lordship referred the matter to the Division Bench to consider:

Can the revisional power of the High Court u/s 435 Cr. P.C. be controlled by the nature of the property involved in the proceedings u/s 145 Cr.

P.C.?

Whether such a classification is not hit by Article 14 of the Constitution of India?

Whether the powers of the High Court u/s 439 Cr. P.C. can be controlled by Section 435(4) Cr. P.C?

The aforesaid questions were of considerable importance. Therefore an authoritative pronouncement of a larger bench was required to be given.

The two revision petitions arise out of the proceedings u/s 145 Cr. P.C. decided by Executive Magistrates. The land in dispute was covered by

the provisions of Agrarian Reforms Act, therefore Executive Magistrates alone had jurisdiction to initiate the proceedings about the dispute u/s 145

Cr. P.C. and decide the same. This exclusively vesting of jurisdiction in respect of land as defined in the Agrarian Reforms Act, in the Executive

Magistrates was by operation of law.

Section 435(4) was brought to the notice of the Hon'ble ACJ by Mr, S. T. Hussain for the proposition that in respect of lands as defined in the

Agrarian Reforms Act, revisional jurisdiction of the High Court is taken away by the said Sub-section of Section 435 Cr. P.C,

It may be profitable to reproduce Section 435(4) Cr. P.C. for proper appreciation of the controversy:

High Court may call for and examine the record of any proceeding under Sees. 118, 122,143 or 144 notwithstanding the fact that such proceeding

was before an Executive Magistrate.

Because Section 145 was omitted in the aforesaid sub-section, therefore a contention was raised that High Court had not jurisdiction to hear

revision in respect of orders passed by Executive Magistrates u/s 145 Cr. P.C. The other side had contended before the Single Judge that High

Court's jurisdiction to hear the revisions against the orders of Executive Magistrates u/s 145 Cr. P.C. was intact by virtue of Section 439 Cr. P.C.

It was also contended that Section 439 Cr. P.C. was a controlling section. A further contention raised was that if the jurisdiction of the High Court

to exercise its revisional jurisdiction would depend on the nature of the property, that would be discriminatory and violative of Article 14 of the

Constitution of India.

Mr. S. T. Hussain is for the ouster of the jurisdiction of the High Court and he has relied on Sub-section (4) of Section 435 Cr. P.C. which is

reproduced hereinabove and M/s. K. N. Raina and R. N. Kaul are controverting this position.

We have heard learned Counsel for the parties in detail.

The scope of the reference is limited one. Therefore Mr. S. T. Hussain's contention to consider other questions beyond the scope of the

reference cannot be upheld He has contended that orders u/s 145 Cr. P.C. are in the nature of police orders and as such revision against such

orders would not be maintainable even if said orders are passed by Judicial Magistrate. According to him final orders passed u/s 145 Cr. P.C.

have a limited import as it decides the question of possession alone and are subject to the decision of a civil Court. The aggrieved party can

approach the civil Court. Revisional jurisdiction of the High Court as such cannot be invoked. Though this question does not arise directly in this

case, but we would like to say something on this aspect of the case also a little later.

Criminal Procedure Code by virtue of Section 6 categorises classes of criminal Courts. It says that 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 Jammu and Kashmir

State, which are:

I. Courts of Session.

II. Courts of Magistrates

Section 6-A classifies the Magistrate in two categories; one the category of Judicial Magistrates; and, other the category of Executive Magistrates.

Among the category of Judicial Magistrates, the Chief Judicial Magistrate is placed as head of such Magistrate and among the Executive

Magistrates, the District Magistrate is the head of such Magistrates.

By virtue of Separation of Powers Act, Judicial Magistrates, powers to hear cases came to be defined and certain cases were exclusively triable

by Executive Magistrates. This happened when separation of Judiciary from Executive took place by operation of law in 1966. Disputes u/s 145

were to be determined by Judicial Magistrates in respect of properties mentioned in Section 145 Cr. P.C. However with the advent of Agrarian

Reforms Act disputes regarding the lands as defined in the said Act would be decided only by Executive Magistrates. Disputes regarding other

properties, which was not covered by the Agrarian Reforms Act could be decided only by the Judicial Magistrates. Therefore the nature of the

properties would determine the jurisdiction of Judicial Magistrates and Executive Magistrates to take cognizance about disputes of Immovable

property u/s 145 Cr. P.C. The cognizance of the disputes u/s 145 Cr. P.C. by respective Courts i.e. Courts of Judicial Magistrates and the

Executive Magistrates would entirely depend on the nature of the property. Nature of the property was determinative for conferring jurisdiction on

two classes of Magistrates in respect of disputes u/s 145 Cr. P.C. The procedure for determining the controversy by the two classes of

Magistrates u/s 145 Cr. P.C. remains the same. Only two forums were constituted to hold enquiry and decide the matters u/s 145 Cr. P.C. in

respect of two classes of properties, one governed by the Agrarian Reforms Act and the other outside the ambit of the said Act. In both the cases

proceedings were of original nature. The object of conferring jurisdiction of Executive Magistrates in respect of lands as defined in the Agrarian

Reforms Act was to get disputes quickly determined so as to implement the Agrarian Reforms Act within the time bound programme. Provisions of

Agrarian Reforms Act had a scheme of its own which was framed to abolish intermediaries and confer benefits on the tenants of the land in actual

possession. There was a scheme of vesting of land in the State first, then in the prospective owners who were in actual physical possession as

tenants in Kharief 1971. The welfare legislation was meant to abolish the landlordism and to achieve certain objects given in the Act. This

discussion is necessary to understand the proposition as to why on the basis of nature of property, jurisdiction was divided between two classes of

Courts to take cognizance of disputes u/s 145 Cr. P.C.

In this background scope of Section 435 Cr. P.C. requires to be examined Sub-section (1) of Section 435 reads as under:

(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 Courts/and may when

calling for such record, direct that the execution of any such 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.

On reading this sub-sec., power of High Court to call for records of inferior criminal Courts within its jurisdiction for purposes of satisfying itself as

to the correctness, legality or propriety of and finding, sentence or order, record or passed and as to the regularity of any proceedings of such

inferior criminal Court remained intact. Inferior criminal Court are mentioned in Section 17-B of the Criminal Procedure Code. Courts of Sessions

and Courts of Judicial and Executive Magistrates are Courts inferior to the High Court. So for purpose of Sub-section (1) of Section 435 High

Court is vested with power to call for record of inferior Courts which includes a Court of Executive Magistrate and pass necessary orders.

However, the difficulty of Mr. S. T. Hussain is that since Sub-section (4) of Section 435 omits to mention Section 145 Cr. P.C., therefore by

implication it should be construed that High Court's jurisdiction to call for the records of Executive Magistrates in proceedings u/s 145 Cr. P.C. is

ousted. Because of this omission, the present two revisions are said to be not maintainable as the orders passed in these two revisions are passed

by the Executive Magistrates.

We have given our thoughtful consideration to the rival contentions of the learned Counsel for the parties. Section 435(1) is a controlling sub-

section and it certainly vests power to hear revisions, in the High Court in respect of orders passed by inferior criminal Courts, which include

Courts of Executive Magistrates also. Sub-section (4) of this Section omits to make mention of orders passed u/s 145 Cr. P.C. That in our opinion

does not present any difficulty. Sub-section (4) of Section 435 Cr. P.C. does not in our opinion restrict the powers of High Court to entertain

revisions against orders passed by Executive Magistrates in proceedings u/s 145 Cr. P.C. It, on the other hand, enlarges the powers of High Court

to hear revisions in respect of orders passed under various sees., such as 118 122,143 and 144 Cr.P.C. Omission of Section 145 Cr. P.C.,

therefore from Sub-section (4) will not affect the jurisdiction of the High Court to hear the revisions in respect of those proceedings because Sub-

section (1) of Section 435 positively vests that power in the High Court. If the interpretation of Mr. S. T. Hussain is accepted then Sub-section (1)

of Section 435 is rendered nugatory and meaningless. Sub-section (1) and Sub-section (4) of Section 435 have to be harmoniously constructed.

The construction should aim at making the two sub-sections workable and meaningful. These two sub-sections are independent of each other

though Sub-section (1) being key to the intendment expressed by the Legislature as regards powers of High Court.

Ouster of jurisdiction of High Court to entertain revisions against the orders of Executive Magistrates passed u/s 145 Cr, P.C. is not to be

presumed because no such ouster is expressed by the Statute. Exclusion of jurisdiction is not to be implied. It must be express. Though in certain

eases it is by implication also. Sub-section (1) of Section 435 expressly vests jurisdiction in the High Court to entertain the present revisions. By

implication Sub-section (4) could not take it away. If harmonious construction is placed on two sub-sections, one is constrained to say that Sub-

section (4) is meant to enlarge the revisional jurisdiction of the High Court as regards orders passed in certain proceedings specified in the said

sub-section. The two sub-sections, therefore, are necessarily to be harmoniously interpreted and jurisdiction given expressly is not to be presumed

to be ousted impliedly. Mr. S. T. Hussain's submissions make the two sub-sections inconsistent with each other and mutually contradictory.

The nature of the property would not determine the revisional jurisdiction of the High Court. It may determine jurisdiction in original

proceedings, but High Court's power of revision would not be dependent on the nature of property. Original jurisdiction to determine disputes by

the two classes of Magistrates could depend on nature of property, but legality and propriety of said orders could be determined by the High

Court under its revisional jurisdiction and the said power will not be fettered because the disputes u/s 145 are determined by two different forums.

Admittedly against Judicial Magistrates power of revision is available to the High Court. If this power of revision is ousted on the basis of nature of

property, that would be discriminatory and violative of Article 14. Revisional powers of High Court can never be said to be dependent on the

nature of the property. Therefore, it is to be held that revisional power of the High Court cannot be presumed to be ousted and is not ousted

because orders are passed by Executive Magistrates in respect of properties which are governed by the Agrarian Reforms Act.

Our answer to the first question is, therefore, in negative and we hold that the revisional powers of the High Court u/s 435 cannot be controlled

by the nature of the property involved in the proceedings u/s 145 Cr. P.C.

As regards second question our answer will be in the affirmative because if revisional jurisdiction of the High Court is made dependent on the

nature of the property involved in proceedings u/s 145 Cr. P.C. the classification will be hit by Article 14 of the Constitution of India and will be

discriminatory.

We need not consider the effect of controlling provisions of Section 439 Cr. P.C. because we are of the opinion that revisional powers of the

High Court to hear revisions against the orders of Executive Magistrates passed in proceedings u/s 145 are intact and have not been ousted either

expressly or by implication.

Mr. Tassaduque Hussain's argument as regards complete ouster of jurisdiction of the High Court to entertain revisions against orders passed in

Section 145 proceedings is devoid offered.

Lallubhai Dayaram Bhatt Vs. Karimbhai Dattekhan and Another, relied upon by Mr. Tassaduque Hussain is an authority for the proposition

that revisions should not be directly brought to the High Court against the orders passed u/s 145 proceedings before first approaching the

appropriate forums. This authority does not support the contention of Mr. S. T. Hussain which we are considering after answering the reference

Bhinka and Others Vs. Charan Singh, is not an authority for the proposition that revision against the orders passed u/s 145 Cr. P.C. would not lie

to the High Court. It only says that order u/s 145(6) decides possession and not title. This proposition of law is not in controversy. Brajnandan

Sinha Vs. Jyoti Narain, has dealt with Section 3 of the Contempt of Courts Act while discussing the status of a Commissioner appointed under Act

No. 37 of 1850. It was held that such Commissioner is not a Court. Therefore a violation of his order could not be brought under the purview of

Section 3 of the Contempt of Courts Act of 1952. The contention of Mr. S. T. Hussain is therefore misconceived and is hereby rejected.

The reference is answered accordingly. The two revision petitions shall be placed before any available single bench of hearing on merits.

S.M. Rizvi, J.

I agree.