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2002 DIGILAW 83 (JK)

Sayed Jalal-ud-din v. State

2002-04-02

S.K.GUPTA

body2002
1. In invoking provision of sections 432/433 of the Cr PC. Munsiff. Judicial Magistrate First Class. Ramban. has made a reference to this court in respect of the following points. "A. This case has not been transferred to this court Munsiff JMIC Ramban vide any order of superior court but came before this court during the course or disposal / physical verification of seized property u/s 550 Cr.P.C. (B) The order dated 20-04-2001 can not be interpreted in any way by this court as the same being of superior court although jurisdiction under Cr. P C. being, concurrent. however still this instant court lack jurisdiction of clarification of superior court i.e. Sub Judge/JMIC. (C) How to finally dispose of case file 212 as instiluted on 27-2-2001 and brought before this court in disposal of case property on 22nd Jan. 2002. (D) Any other point or direction which the Honble court deems fit taking into consideration the facts and circumstances of the instant case. 2. A request was made to Mr. BaldcvSingh. Government Advocate to provide assistance in answering the reference made by the Munsiff. judicial magistrate first class. Ramban. A freak but few facts giving rise to this reference may be noticed. An application came to be initialed by one Jalal-ud-din claiming to have purchased a vehicle from Syeed Ali Chisii and also appointed attorney holder, for the release of the vehicle bearing registration no. MH-29B-0907 seized by police station Ramban before Sub-Judge Judicial Magistrate Ramban after perusing the record and hearing the Senior Prosecuting Officer the magistrate found that the petitioner has succeeded in proving a prima facie right over the vehicle and ordered its release in favour of the petitioner on supcradnama with a direction to keep the vehicle in good condition refrain from transferring the vehicle to any other person without prior permission of the court and bound to produce the said vehicle in the court whenever asked and in case of default to do so to pay the full cost of the vehicle in addition to being liable for criminal prosecution . The petitioner was further directed to refrain from the use of vehicle for illegal purpose and asked to furnish indemnity bond in respect thereof. This release order on snperadnama came to be passed by Sub-Judge Judicial Magistrate Ramban on 20-04-2001. 4. The petitioner was further directed to refrain from the use of vehicle for illegal purpose and asked to furnish indemnity bond in respect thereof. This release order on snperadnama came to be passed by Sub-Judge Judicial Magistrate Ramban on 20-04-2001. 4. The Superadnama of the vehicle however came to be presented before Munsiff Judicial Magistrate first class Ramban which however became the subject ma tier by making a reference on the points referred to here inabove to this court under section 432 /433 Cr. P.C. It may be pointed out at the threshold the very tone and toner of the texture of the reference exhibit the lack of legal acumen common sense and understanding of the true import and purport of sections 432 and 433 of the Cr. PC, In order that a reference may be made under section 432 three conditions must be satisfied that (i) The court must be satisfied that the question of validity of an Act or Ordinance or of any provision contained in any Act or Ordinance is raised in a case pending before it; (ii)The court must be satisfied that the determination of which is necessary for the disposal of the case: and (iii) The court must be of the opinion is such act or ordinance or provision is invalid or inoperative but has not been so declared by the High Court or by the Supreme Court. 5. The provision in its plan reading postulates that a reference under this section can be made only when the validity of an act is raised it can have no application where there is controversy about the validity of any provision or any act or Ordinance. 6. As is gatherable from the record their was none case pending before the court of Munsiff Judicial Magistrate 1st class Ramban. Only superadnama was presented by a person in whose favour the order for the release of the vehicle had already been made by Sub Judge Judicial Magistrate. Ramban the question before him was only with regard to the acceptance or rejection of superedanama in terms of the order propounded by Sub Judge Judicial Magistrates on 20-4-2001 an ordinary common sense, in such an event demand, either to accept or reject the superdanama in case it is not in order or to return to be presented before then concerned court. It is profitable to point out that judicial magistrate while discharging the Judicial functions should keep back their anxieties and resort to application of mind in respect of the matters coming up before him for adjudication. The points formulated in t he reference are not even remotely covered by the provisions indicated in sections 432/433Cr.P.C. 7. It may further be pointed out that the power to make a reference under section should not be used as a device to avoid decision on any matter that comes up before the court. The proper course for the magistrate in such an event would be to decide the matter on merit, leaving the aggrieved to approach to the superior court and not to refer the matter to the High Court under this section unless it is squarely covered by it and upon satisfying conditions mentioned their in. untill the conditions mentioned in section 432 where not satisfied the provision could not be invoked by the magistrate for making reference. What is adducible inescapably from the aforesaid discussion is that the reference is misconceived and accordingly rejected. The file be remitted back to the Munsiff Judicial Magistrate 1st class Ramban to proceed with the matter in accordance with law.