STATE OF GUJARAT v. PANDYA MOHANLAL UGRESHWAR — 1967 DIGILAW 129 (GUJ)

J. M. SHETH, J. ( 1 ) THIS is a reference made by the learned Additional Sessions Judge Ahmedabad Rural camping at Himatnagar under sec. 438 of the Criminal Procedure Code recommending that the older passed by the learned Taluka Magistrate Bhiloda in a Chapter Case No. 8 of 1966 on 28 be set aside. ( 2 ) THE facts leading rise to this reference are briefly stated as under :-A proceeding under sec. 107 of the Criminal Procedure Code has been taken against one Pandya Mohanlal Ugreshawar of Bhiloda. That proceeding was pending in the Court of Taluka Magistrate Bhiloda. In that proceeding on behalf of the opponent an application was given that the opponent be supplied the copies of the statements recorded by the Police Officer who had initiated that proceeding during the inquiry that he made before the witnesses were examined in the said proceeding before the Taluka Magistrate. The learned Taluka Magistrate directed the complainant to furnish the copies of such statements to the opponent. ( 3 ) BEING dissatisfied with that order the State filed a Criminal Revision Application No. 16 of 1966 in the Sessions Court at Himatnagar. The learned Additional Sessions Judge being of an opinion that the provisions of Sec. 173 (4) of the Criminal Procedure Code could not have any application to a proceeding like the present proceeding and there being no investigation for a cognizable offence meaning thereby that the aforesaid statements having been not recorded an any such investigation the State was not bound to furnish such copies to the opponent has reported the matter to this Court under sec. 438 of the Criminal Procedure Code for setting aside the impugned order. ( 4 ) THE learned Government Pleader Mr. Sompura appearing on behalf of the State fairly invited my attention to the position that the learned Sessions Judge was not competent to entertain the aforesaid Criminal Revision Application as the impugned order was passed by the Taluka Magistrate. The correct forum was the Court of the District Magistrate. He urged that sub-sec. (2) of sec. Sompura appearing on behalf of the State fairly invited my attention to the position that the learned Sessions Judge was not competent to entertain the aforesaid Criminal Revision Application as the impugned order was passed by the Taluka Magistrate. The correct forum was the Court of the District Magistrate. He urged that sub-sec. (2) of sec. 435 of the Criminal Procedure Code indicates that the District Magistrate or any sub-divisional Magistrate empowered by the State Government in this behalf can call for and examine the record of any proceeding before any subordinate Executive Magistrate for the purposes of satisfying himself as to the correctness legality or propriety of any order recorded or passed and as to the regularity of any proceedings of such subordinate Magistrates. Furthermore sec. 438 of the Criminal Procedure Code indicates that on examining under sec. 435 or otherwise the record of any proceeding: (1) if such proceeding is in respect of an order made under secs. 118 122 143 144 or 145 and the District Magistrate thinks that the order made in such proceeding should be reversed or altered he shall report for the orders of the High Court the result of such examination; (2) if such proceeding is in respect of an order made under any other section then in the case of such proceeding the District Magistrate may subject to the provisions of sub-sec. (2) of sec. 436 exercise any of the powers conferred on a Court of appeal by secs. 423 426 427 and 428. Sec. 6 of the Criminal Procedure Code states:-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 State of Gujarat namely; (1) Courts of Sessions. (2) Courts of Magistrates. Sec. 6-A enumerates different classes of Magistrates. Taluka Magistrates District Magistrates and Sub-Divisional Magistrates are included in that class (II) relating to Executive Magistrates. It is therefore evident that Taluka Magistrates are Executive Magistrates. Sec. 17 of the Criminal Procedure Code states that: All Judicial Magistrates appointed under secs. 12 and 14. . . . . shall be subordinate to the Sessions Judge. . . . ( 5 ) SEC. 17-A of the Criminal Procedure Code states:all Executive Magistrates appointed under sec. It is therefore evident that Taluka Magistrates are Executive Magistrates. Sec. 17 of the Criminal Procedure Code states that: All Judicial Magistrates appointed under secs. 12 and 14. . . . . shall be subordinate to the Sessions Judge. . . . ( 5 ) SEC. 17-A of the Criminal Procedure Code states:all Executive Magistrates appointed under sec. 13 or 14 shall be subordinate to the the District Magistrate; and every Taluka Magistrate shall also be subordinate to the Sub-Divisional Magistrate subject however to the general control of the District Magistrate. ( 6 ) SEC. 17-B of the Criminal Procedure Code deals with a topic regarding Inferior Criminal Courts of Magistrates courts of Sessions and Courts of Magistrates (including Courts of Presidency Magistrates) shall be Criminal Courts inferior to the High Court and Courts of Magistrates outside Greater Bombay shall be Criminal Courts inferior to the Court of Sessions. Sec. 435 (1) states:-THE High Court or any Sessions Judge other than the Sessions Judge of the Court of Sessions for Greater Bombay 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. . . . . . . . . Sub-sec. (4) of sec. 435 states:-THE High Court may call for and examine the record of any proceeding in respect of an order made under secs. 118 122 143 144 or 145 notwithstanding the fact that such proceeding was before an Executive Magistrate or the Commissioner of Police as the case may be. ( 7 ) IT is thus evident that the Legislature has made a clear provision in regard to the powers vested in the High Court to call for and examine the record of any proceeding in respect of the orders referred to therein even though such proceeding was before an Executive Magistrate. We have therefore to read all these sections and sub-sec. (4) of sec. 435 together and find out what was the real intention of the Legislature in making this provision. This question arose before the Bombay High Court and a Division Bench of the Bombay High Court has referred to the provisions of secs. We have therefore to read all these sections and sub-sec. (4) of sec. 435 together and find out what was the real intention of the Legislature in making this provision. This question arose before the Bombay High Court and a Division Bench of the Bombay High Court has referred to the provisions of secs. 435 and 17-B of the Criminal Procedure Code in the case of Doctor Lallubhai Dayaram Bhatt v. State of Bombay 59 Bombay Law Reporter 942 and after referring to the relevant provisions of the Criminal Procedure Code has made the following observations:-A Sessions Judge has no jurisdiction to entertain an application in revision against an order passed by an Executive Magistrate under sec. 145 of the Criminal Procedure Code 1898 ( 8 ) SUCH an application would lie to the High Court under sec. 435 (4) of the Codes but before a party approaches the High Court he should first apply to the District Magistrate or the Sub-Divisional Magistrate as the case may be under sec. 435 (2) of the Code. ( 9 ) AT page 944 Chainani J. (as he then was) speaking for the Division Bench has made the following pertinent observations:-IT seems to us that an application against an older made under sec. 145 Criminal Procedure Code cannot lie to the Sessions Court in view of the provisions of sub- sec. (2) of sec. 435 Criminal Procedure Code which provides for the record of any such proceeding being called for and examined by a District Magistrate or a Sub-Divisional Magistrate. As therefore this sub-section makes a specific provision as to the authority which can examine the correctness legality or propriety of an order made by an Executive Magistrate under sec. 145 Criminal Procedure Code the jurisdiction of the Sessions Judge is necessarily ousted. The ordinary rule of interpretation is that where there is a specific provision with regard to any matter that must prevail over the general provisions made in the enactment. ( 10 ) WE are accordingly of the opinion that a Sessions Judge has no jurisdiction to entertain an application in revision against an order passed by an Executive Magistrate under sec. 145 Criminal Procedure Code. ( 11 ) SUCH an application of course lies to the High Court under sub-sec. (4) of sec. 435 Criminal Procedure Code. ( 10 ) WE are accordingly of the opinion that a Sessions Judge has no jurisdiction to entertain an application in revision against an order passed by an Executive Magistrate under sec. 145 Criminal Procedure Code. ( 11 ) SUCH an application of course lies to the High Court under sub-sec. (4) of sec. 435 Criminal Procedure Code. But before a party approaches the High Court he should first apply to the District Magistrate or the Sub-divisional Magistrate as the case may be under sub-sec. (2) of sec. 435 of the Criminal Procedure Code. ( 12 ) IN this case the petitioner has not so far applied to the District 2magistrate. He should do so before coming to this Court. We will therefore discharge the rule without expressing any opinion on the question whether the order which has been challenged in this application is correct or otherwise. The petitioner may if he is so advised apply to the District Magistrate under sub-sec. (2) of sec. 435 Criminal Procedure Code. ( 13 ) I am in respectful agreement with these observations made. Furthermore this judgment being a judgment of the Bombay High Court given before the date of bifurcation is binding on me. I therefore hold that the Sessions Judge had no jurisdiction to entertain an application in revision against the impugned order passed by an Executive Magistrate in a proceeding under sec. 107 of the Criminal Procedure Code. Reference therefore cannot be accepted. Rule should therefore be discharged. The State if it is so advised may apply to the District Magistrate or sub-divisional Magistrate under sub-sec. (2) of sec. 435 Criminal Procedure Code. ( 14 ) REFERENCE is rejected. Rule is discharged. Reference rejected. .