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Allahabad High Court · body

1969 DIGILAW 265 (ALL)

Jai Narain v. State of U. P.

1969-09-17

M.N.SHUKLA

body1969
JUDGMENT M.N. Shukla, J. - This revision arises out of proceedings under section 145 Cr.P.C. which were initiated in the court of the SDM Handia, district Allahabad, which was a competent court within whose territorial jurisdiction the property in dispute was situate. It appears that later the case was ultimately transferred to the file of Sri P.K. Misra, Magistrate First Class, Allahabad. The present applicants were impleaded on their motion in the proceedings under section 145 Cr.P.C. They were granted opportunity to file their evidence in the shape of affidavits and other documents. It is alleged that they were unable to reach the court in time on the date fixed for that purpose with the result that the evidence on their behalf could not be filed. The request made by them to the Magistrate for entertaining their evidence was rejected by the order dated 9.6.1967. The applicants filed a revision which was also dismissed by the learned Civil and Sessions Judge, Allahabad, who agreed with the views expressed by the Magistrate. 2. The learned counsel for the applicants in this revision has urged that owing to circumstances beyond the control of the applicants the necessary evidence could not be filed in time. Though the affidavits were ready on the same date and where sought to be brought on record the request of the applicants was rejected. It was, therefore, urged that the order should be set aside and opportunity should be afforded to the applicants for adducing evidence. There is a clear finding recorded by the Courts below that opportunity was given to the applicants to adduce their evidence but they failed to avail of the same. I am, therefore, not inclined to interfere in my revisional jurisdiction with the order passed by the courts below. 3. Learned counsel for the applicants raised new plead in this revision, which was not raised in the courts below, It was contended that with regard to the proceedings under section 145 Cr.P.C. the only Magistrate competent to take cognizance in the one within whose territorial jurisdiction the disputed property is situate. In the instant case even though proceedings were initiated in the curt of the SDM Handia, District Allahabad, they were later transferred to the court of another Magistrate First Class, Allahabad. In the instant case even though proceedings were initiated in the curt of the SDM Handia, District Allahabad, they were later transferred to the court of another Magistrate First Class, Allahabad. One this basis it was argued that this was in violation of the mandatory rule laid down in S. 145 Cr.P.C. and the impugned order was without jurisdiction I find so substance in this argument. In the first place, the applicants had clearly acquiesced in the jurisdiction of the Magistrate. They merely wanted an opportunity even in this revision. It is, therefore, not open to them now to challenge the jurisdiction of that court. Secondly, even on merits this argument is devoid of substances. All that is forbidden by S. 145 Cr.P.C. is that proceedings cannot be initiated in the Magistrate's court within whose territorial jurisdiction the property in dispute is situate. One the proceedings are commenced in the proper court, there could be no bar to the transfer of that case to the file of another Magistrate. The provisions of S. 145 Cr.P.C. cannot be construed as over-ridding the general power conferred upon the District Magistrate and trying it himself or transferring if for disposal to another Magistrate. That general power remains unimpaired by the provisions of S. 145 Cr.P.C. My attention was drawn to S. 530 cl. (j) Cr.P.C. which provides that if any magistrate not being empowered by law in this behalf makes an order v. Ch. XII which includes S. 145 Cr.P.C. it is an irregularity which vitiate the proceedings. In my opinion this provision is not attracted in the present case, inasmuch as the Magistrate who took cognizance of the case was empowered in this behalf to try the case. He was admittedly the Magistrate of the sub-division within whose territorial jurisdiction the property in dispute was situate. The fact of the subsequent transfer of the case to the file of another Magistrate does not constitute any irregularity and is embraced within the power of he District Magistrate contained in S. 528 Cr.P.C. 4. I, therefore, dismiss this revision. The stay order dated 14.12.1967 is vacated.