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2002 DIGILAW 292 (JK)

Gh. Nabi Chachoo v. Gh. Ahmad Thokar

2002-09-09

B.C.PATEL, SYED BASHIR-UD-DIN

body2002
Per Hon™ble B.C. Patel, Chief Justice: 1. This Criminal Reference has come up for hearing before Division Bench in view of the order made by the then Learned Chief Justice on September 6, 1989. 2. Order made by the Sub-Divisional Magistrate, Srinagar dated; 25-06-1988 is placed on record. For the reasons recorded in the order, Sub-Divisional Magistrate, Srinagar arrived at a conclusion that Ghulam Ahmad Thokar was in possession of land in question, measuring about two kanals and 4 1\2 marlas situated at Abi Nowpora, Srinagar comprising of Khasra numbers 469 Min and 465 on the date when the preliminary order in the case was drawn i.e. 25-02-1984. Gh. Ahmad Chachoo, S/o Ahad Chachoo, was ordered to restore possession of the same to the appellant Ghulam Ahmad Thokar. 3. Being aggrieved by the said order, Sh. Ghulam Nabi Chachoo and others preferred Revision Application before the Court of Sessions at Srinagar. Learned Sessions Judge on 03-12-1988, after hearing the parties made a reference to this Court for quashing the proceedings initiated by Executive Magistrate. It is in view of this reference, the matter was placed before the Court for hearing on 06-09-1989. After hearing the parties, question referred to Division Bench reads as under: "Whether the expression "any inferior Criminal Court" occurring in sub section (1) of Section 435 of the Code, includes an Executive Magistrate also and consequently Sessions Judge has the power to revise the orders passed by the Executive Magistrate under Section 145 of the Code implying thereby that the expression "all magistrates" occurring in the explanation to Sec. 4358 (1) of the code includes both the executive and the Judicial Magistrate?" 4. Relevant part of Section 145 of the Criminal Procedure Code 1989 reads as under: - "1. Relevant part of Section 145 of the Criminal Procedure Code 1989 reads as under: - "1. [Whenever a Chief Judicial Magistrate, or any other Judicial Magistrate of the first Class] is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a tune to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims; Provided that where the dispute likely to cause a breach of peace concerns any land as defined in the Jammu and Kashmir Agrarian Reforms Act, 1976 the powers under this section shall be exercisable only by the District Magistrate or an Executive Magistrate of the first class." 5. Sub Sections 2 to 10 are not referred as the same are not relevant to decide the question, we are, therefore not referring the same. Thus it is very clear that where there is a dispute which is likely to cause breach of peace and which is concerning any land as defined under J&K Agrarian Reforms Act, 1976, (herein after referred as the Act) the powers can be exercised only by the District Magistrate or Executive Magistrate. In the instant case dispute is undisputedly concerned with land attracting the provisions contained in the Act. The question about powers to be exercised by Sessions Court against an order made by Executive Magistrate is required to be considered. For that purpose Section 6 of Criminal Procedure Code 1898 (hereinafter referred as the Code) will have to be considered which points out the Courts which are constituted and are known as Criminal Courts in the State of Jammu & Kashmir. So far as classes of Magistrates are concerned, same are defined under categories of Judicial and Executive Magistrate. For that purpose Section 6 of Criminal Procedure Code 1898 (hereinafter referred as the Code) will have to be considered which points out the Courts which are constituted and are known as Criminal Courts in the State of Jammu & Kashmir. So far as classes of Magistrates are concerned, same are defined under categories of Judicial and Executive Magistrate. Section 17-8 of the Code reads as under:- " Courts of Sessions and Courts of Judicial and Executive Magistrates shall be Criminal Courts inferior to the High Court and Courts of Judicial and Executive Magistrates shall be Criminal Courts inferior to the Court of Sessions." 6. Thus, Courts of Sessions and Courts of Judicial and Executive Magistrates, shall be Criminal Courts inferior to the High Court. This Section makes it very clear that so far as the courts of Executive Magistrates, are concerned, shall be deemed to be Criminal Courts inferior to the Court of Sessions. Therefore, in respect of powers exercised by Executive Magistrate under Section 145 of the Code concerning and land as defined in the Act, Executive Magistrate shall be deemed to be inferior to the Court of Sessions. 7. Section 6 of the Code is required to be perused at this stage. Two classes of Magistrates are indicated in Section 6 of the Code, i.e. Judicial Magistrate and Executive Magistrate. District Magistrates, Additional District Magistrates, Sub Divisional Magistrates. Executive Magistrates of 1st Class as well as Second Class and Special Executive Magistrates are Magistrates known as Executive Magistrates. In view of Section 17-B of the Code, courts of Judicial Magistrates and Executive Magistrates are inferior to the court of Session. Section 17-B is an independent provision and is required to be read as it is unless provision is required to be read otherwise for some provision having non-obstinate clause, restricting what is said in Section 17-B of the Code. 8. Section 435 of the Code is with regard to Reference and Revision and powers to call for records of inferior Courts. Sessions Judge may call for and examine the record of inferior Court situated in local limits of his jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or order recorded or passed, and as to the regularity of any proceedings of any such inferior court. Sessions Judge may call for and examine the record of inferior Court situated in local limits of his jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or order recorded or passed, and as to the regularity of any proceedings of any such inferior court. We have also perused Sub Section (4) of Section 435 of the Code which empowers High Court to call for and examine any proceedings under Section 118, 122, 143 or 144 of the Code notwithstanding the fact that such proceeding was before Executive Magistrate. Sub Section (4) of Section 435 of the Code does not refer to Section 145 of the Code. Therefore, can it be said that against an order made under Section 145 of the Code, jurisdiction of High Court or Sessions Court is taken away as no express provision is made. Sub Section (2) of Section 435 has no explanation like wise Sub Section (1) of Section 435 of the Code. Explanation to Sub Section (1) of Section 435 of the Code points out that all Magistrates shall be deemed to be inferior to the Sessions Judge for the purposes of Sub Section (1) of Section 435 and Section 437 of the Code. 9. Section 438 of the Code refers to the reference by Sessions Judge or the Chief Judicial Magistrate. Whenever Sessions Judge in exercise of his powers under Section 435 of the Code is of the opinion that reference is required to be made. then, he is duty bound to make a reference under the Code. Once it is held that Executive Magistrate™s Court is inferior to the Court of the Sessions, then in that case when powers are exercised under Section 145 of the Code by the Executive Magistrate, Sessions Judge is entitled to call for and examine the record of any inferior court situated within the local limit of his jurisdiction. (1) The Division Bench of this Court in case of Ghulam Rasool Dar and Another Vs. State of Jammu & Kashmir and Others reported in JKLR 1985 page 206 had an occasion to examine somewhat identical situation. In that case under Section 145 of the Code Executive Magistrate exercised the powers as dispute was covered under the provisions of J&K Agrarian Reforms Act. State of Jammu & Kashmir and Others reported in JKLR 1985 page 206 had an occasion to examine somewhat identical situation. In that case under Section 145 of the Code Executive Magistrate exercised the powers as dispute was covered under the provisions of J&K Agrarian Reforms Act. District Magistrate or Executive Magistrate had jurisdiction to initiate proceedings with regard to dispute under Section 145 of the Code and to decide the same. 10. The Court hearing the matter rejected the contentions about the ouster of jurisdiction of the High Court against an order made by inferior court under Section 145 of the Code. The Court expressed the opinion that the exclusion of jurisdiction must be express though in certain cases it may be by implication also, in Para 13 Court pointed out asunder:- "Ouster of jurisdiction of High Court to entertain revisions against the orders of Executive Magistrates passed under Section 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 cases 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 the sub-sections, one is constrained to say that sub-section (4) is meant to enlarge the revisional jurisdiction to the High Court as regards orders 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." 11. The Division Bench held that the revisional powers of the High Court under Section 435 of the Code cannot be controlled by the nature of the properly in the proceedings under Section 145 of the Code. The Court rejected the contention with regard to the ouster of the jurisdiction of the High Court to entertain the application against the order passed under Section 145 of the Code. 12. Learned Single Judge in case of Abdul Rashid Vs. Mst. The Court rejected the contention with regard to the ouster of the jurisdiction of the High Court to entertain the application against the order passed under Section 145 of the Code. 12. Learned Single Judge in case of Abdul Rashid Vs. Mst. Bega and others reported in JKLR 1988 page 329 has held that:- "The power of Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction are wide enough to cover the revisions against the order passed under section 145 of the Code. The word ˜proceeding™ include within its ambit, the proceedings under section 145 of the Code and there is thus no bar for the Sessions Judge to entertain revisions against the orders passed by S.D.M." 13. The record was called for to consider the above question as to whether under Section 435 (1) of the Code. Sessions Judge is empowered to hear Revision Application against the order of Inferior Criminal Court or not. In that case Sessions Judge by his order dated: 03-12-1988 made a Reference to question the order made by Sub Divisional Magistrate in a proceeding under Section 145 of the Code. After examining the relevant provision, the Court accepted the Reference, set aside the order made by the Sub Divisional Magistrate on 25-06-1988. in para 5 of the judgment, the Court pointed out as under:- "Adverting to the objection raised by learned counsel for the respondents regarding the jurisdiction of the Sessions Judge to take up the matter in revision against the order passed by the S.D.M., the provisions of Section 43 (I) (SIC 435 (1)) of the Code are wide enough to call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction are wide enough to cover the revisions against the order passed under section 145 of the Code. The word "proceeding" include within its ambit, the proceedings under section 145 of the Code and there is thus no bar for the Sessions Judge to entertain revisions against the orders passed by S.D.M. The objection of the learned counsel for the respondents, therefore, fails." This Court is of the opinion that the expression "Inferior Criminal Court" referred in Sub Section (1) of Section 435 of the Code includes all Executive Magistrates and consequently Sessions Judge has power to examine the order passed by Executive Magistrate under Section 145 of the Code. "All Magistrates" includes both the Executive and the Judicial Magistrate." 14. In view of the Section 17-B of the Code, the Executive Magistrate shall be the Criminal Court inferior to the Court of Sessions. It is also required to be noted that Explanation Clause to Section 435 (I) of the Code refers to "All Magistrates". So far as "All Magistrates" are concerned, one will have to refer to Section 6 of the Code. There are two classes of Criminal Courts in Jammu & Kashmir State, which are: Courts of Sessions and Courts of Magistrates. Again the Courts of Magistrates are divided into two classes. Executive Magistrate and Judicial Magistrate. Judicial Magistrate is classified in four different classes and Executive Magistrate in six different classes. Thus, in Explanation clause, words "All Magistrates" are used, meaning thereby all the classes of Magistrates, namely Judicial and Executive and therefore, the only conclusion that can be drawn from this is that under section 435 (1) of the code Sessions Judge has the power to call for and examine the record of any proceedings before any Magistrate namely Judicial Magistrate or Executive Magistrate. 15. In view of what we have said hereinabove, our answer to the question referred is that any inferior Criminal Court covered under Sub Section (1) of Section 435 of the Code includes Executive Magistrate also exercising powers under Section 145 of the Code and consequently, Sessions Judge has powers to revise the order passed by Executive Magistrate under section 145 of the Code implying thereby that explanation of Magistrate, expressed includes both, the Executive Magistrate and the Judicial Magistrate. In view of what we have said hereinabove, judgment delivered by learned Single Judge in case of Abdul Rash id Vs. Mst. Bega reported in JKLR 1988, page 329 is not required to be reconsidered by this Court. In view of what we have said hereinabove, judgment delivered by learned Single Judge in case of Abdul Rash id Vs. Mst. Bega reported in JKLR 1988, page 329 is not required to be reconsidered by this Court. In view of the above observations and our answer, we remit this matter to the learned Single Judge for disposal in accordance with law.