Ram Yagya vs State and Others

M.N. Shukla, J.—This is an application u/s 482 of the Code of Criminal Procedure praying that the orders dated 24-11-1980 and 9-12-1980 passed by the Sub-Divisional Magistrate Basti and the Sessions Judge, Basti respectively be quashed and the Magistrate concerned may be directed to decide the proceedings in accordance with law.

I have heard the learned Counsel for the parties. The short facts leading to this application are that proceedings u/s 145 Code of Criminal Procedure were commenced at the instance of the applicant and a preliminary order was duly passed. Thereafter the case proceeded and on one date, namely, 24-11-1980 the Petitioner was absent, the opposite party was present, hence the learned Sub Divisional Magistrate dismissed the application u/s 145 Code of Criminal Procedure. in default. The Petitioner preferred a revision against the same, which was dismissed by the learned Sessions Judge on 9-12-1980 and he held that the revision was not competent. It is these orders by which the Petitioner has felt aggrieved and has taken recourse to the provisions of Section 482 Code of Criminal Procedure.

The question canvassed before me is as to whether a revision lay against an order dismissing the Petitioner''s application u/s 145 Code of Criminal Procedure. It is the case of the parties that second revision is clearly prohibited u/s 397(3) of the Code of Criminal Procedure. If the order passed by the Sessions Judge was erroneous the only remedy open to the Petitioner for correction of the order was by invoking the inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure. But the basic question is as to whether a criminal revision lay to the Sessions Judge against an order of the Magistrate dismissing the proceedings in default. A revision can be filed u/s 397 of the present Code of Criminal Procedure, which reads:

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local 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 the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending for examination of the record.

Explanation--All Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this Sub-section and Section 398.

(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

It is the jurisdiction of the High Court by exercising its powers of revision to call for and examine the record of any proceeding of any inferior Criminal Court for the purposes of satisfying itself 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. The ambit of the power is very wide inasmuch as the legality, propriety, irregularity of the proceedings and, of course, jurisdictional errors etc. are all embraced in the revisional jurisdiction of the High Court. It cannot be seriously contended that the case pending before the learned Sub-Divisional Magistrate commenced on an application filed by the Petitioner u/s 145 Code of Criminal Procedure was not a proceeding. If while dealing with such proceedings any irregularity, illegality or error is committed by the subordinate Criminal Court, which merits interference by the Court in revision in the exercise of its superior powers, surely a revision for the purpose of obtaining such relief would be competent.

The jurisdiction of the Sessions Judge was invoked by the revision for the purpose of examining the validity of the order of the Magistrate dismissing Section 145 Code of Criminal Procedure proceedings in default. Therefore, in my opinion, the order of the learned Sessions Judge dismissing the Petitioner''s revision as not maintainable was patently erroneous and must be set aside.

After quashing that order normally this Court would have remanded the case to the revisional Court for disposing of the revision in the light of the order passed by this Court but on the facts of the instant case I think it would not be expedient in the ends of justice that any further delay be suffered to take place in the final disposal of a case u/s 145 Code of Criminal Procedure. Hence, I refrain from following (he routine procedure of remanding the case to the revisional Court, If on merits I find that the impugned order passed by the Sub-Divisional Magistrate was contrary to law, it would be just and proper that this Court shall in the exercise of its jurisdiction u/s 482 Code of Criminal Procedure quash that order also and then direct the Magistrate to proceed in accordance with law. I am unable to endorse the order of the Magistrate dismissing the proceedings u/s 145 Code of Criminal Procedure for default on account of the absence of the Petitioner. There are proceedings which may be purely in the nature of a personal dispute between the parties to a case. On the other hand, there may be another category of cases in which incidentally what may be a dispute between the parties actually triggers off a much larger issue. The prime motive for permitting legal proceedings u/s 145 Code of Criminal Procedure is prevention of breach of peace an objective predominently connected with public interest. This changes the entire complexion of such proceedings which are not in the nature of a personal fued between two persons or sets of persons. It gives them a larger canvas as the danger to public peace and tranquility is to be effectively prevented. This is what places the proceedings u/s 145 Code of Criminal Procedure on an entirely different footing. In such cases mere negligence or want of sufficient care and diligence of the prosecution depending on the personal conduct of a party loses importance and has to be subordinated to the larger interest of the public by enjoining a final termination of the proceedings only after adjudication of the case on merits. This seems to have influenced the long string of decisions which have countenanced the view that the proceedings u/s 145 Code of Criminal Procedure cannot be dismissed in default. The Magistrate acquires jurisdiction to commence such proceedings by passing a "preliminary order". Having once formed the opinion that an apprehension of breach of peace existed, so long as an order under Sub-clause (5) of Section 145 Code of Criminal Procedure is not made, the Magistrate''s duty is not to terminate the proceedings but to proceed further under Sub-section (4) of Section 145 Code of Criminal Procedure. This provision imposes a very important duty on the Magistrate to continue such proceedings until he decides which of the parties was in possession on the date of the preliminary order or until it is shown under Sub-section (5) that ''no such dispute exists or ''has existed''. The preliminary order can be cancelled only under one circumstance, namely, that the parties required by the Magistrate to appear in proceedings satisfy him that no dispute threatening public peace existed. It follows that it is wrong on the part of Magistrate to treat the informant as complainant and dismiss the proceedings on the date on which he failed to attend the Court. See Bhavrao Ganpatrao Vs. Bhimrao Tukaramji and Others, Therefore, in my opinion, the order passed by the Magistrate was clearly erroneous.

In the result this petition is allowed, the impugned orders are set aside and the case is sent back to the Court of the Magistrate concerned with the direction that he would continue the proceedings in the case u/s 145 Code of Criminal Procedure from the stage at which it was dismissed in default and conclude them in accordance with law.