Vidya Dhar Mishra vs Ram Prakash Pandey and Others

P.K. Jain, J.—List has been revised. Heard Sri P. K. Singh holding brief of Sri J. S. Sengar, learned Counsel for the revisionist. None appears for the opposite parties. It appears from the record that on a report lodged by the revisionist a case under Sections 447, 452, 504, 506 and 427, I.P.C. was registered against the revisionist. It appears that the allegations in the first information report related to demolition of wall which both the parties were claiming to be in their possession. The Investigating Officer during the investigation moved an application before City Magistrate for the help of revenue authority for measurement of the land to arrive at a conclusion as to in whose possession the disputed wall was. The Additional City Magistrate appears to have directed the Tahsildar concerned to provide necessary help to the Investigating Officer. This order was challenged before the Sessions Judge. The Additional Sessions Judge who disposed the revision referred judgment in Criminal Revision No. 242 of 1983 in which he had held that the orders were mala fide and passed by the Additional City Magistrate in collusion with the police. While allowing the revision, the learned Additional Sessions Judge made following observations.

Besides that I find that the order passed by the Additional City Magistrate was without Jurisdiction otherwise as well as. The investigation was being conducted by S. O. Cantt. and if he needed any help in the investigation then the proper authority for getting that help and getting the orders passed was the Judicial Magistrate having Jurisdiction over the area and it was only the Judicial Magistrate concerned who could have passed order for help In the measurements for the purpose of investigation. The Executive Magistrate had absolutely no Jurisdiction to intervene in that affair at all.

The learned Additional Sessions Judge allowed the revision and set aside the order passed by the Additional City Magistrate.

In this revision, it Is contended that an application was made by the Investigation Officer for help of the revenue authority. The order passed by the Additional City Magistrate was simply an order to help the investigating agency to arrive at correct conclusion as to which of the party was actually in possession of the disputed wall. It is contended that the order in question was an executive order passed and was not a Judicial order since it was not passed by a court and hence the revision could not be entertained against such order. I agree with the contention of the learned Counsel for the revisionist. The impugned order passed by the Additional City Magistrate was not passed by him in capacity of court and it was passed only in capacity of Executive Officer. Such order could not have been challenged by way of filing a criminal revision under the Code of Criminal Procedure. The impugned order cannot be sustained.

The revision is allowed. The impugned order is set aside. Stay order dated 6.4.1984 is vacated.