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2004 DIGILAW 293 (JK)

Sudesh Kumar v. Roop Chand

2004-10-14

S.K.GUPTA

body2004
Through the medium of this application, under section 561-A Cr.P.C, modification/clarification of order passed by this court on 2.9.2003 in Cr. Revision No. 63/2003 is sought along with an application for condonation of delay. 2. Petitioner appears to have filed an application before Sub Divisional Magistrate, Reasi, for initiating proceedings under section 145 Cr.P.C alleging therein that he was in possession of land measuring 82 kanals and 7 marlas contained in survey No. 51, located in village Suketar near Sule Nursery, Reasi, as its owner. He further stated to have been cultivating the said land through his employee Mohd Din. The respondent, however, managed the Girdawari entries in his favour, by taking the benefit of being owner in possession of an adjoining piece of land and started fencing it with the purpose to grab the same. The petitioner further stated to have when objected the respondent not to take forcible possession of his land, but the respondent threatened him of dire consequences and thus given rise to dispute concerning the land and occasioned breach of peace on spot. The Sub Divisional Magistrate, Reasi, after proceeding in the matter and recording the statements, asked the Executive Magistrate, Tehsildar, Reasi, to hold a local enquiry. After spot inspection and on receipt of report from Tehsildar, the subject matter of the dispute was attached by the Sub Divisional Magistrate, Reasi. In the objections filed by the respondent, it was pleaded that land in dispute, measuring 6 Kanal 16 Marlas was in his cultivating possession as tenant from 1974 till date. He also denied Mohd Din to be an employee of the petitioner. The Magistrate, after analyzing the evidence produced by the parties and considering their rival contentions, found that proceedings under section 145 Cr.P.C are not tenable as the petitioner could not establish his claim over the land and dismissed the application. Aggrieved by the order of dismissal of the application under section 145 Cr.P.C, revision petition came to be preferred before learned Additional Sessions Judge, Reasi. The revisional Court, after going through the material on record collected by the Magistrate and hearing the parties, found the order under revision requiring no interference and consequently dismissed the revision petition vide order dated 30.4.2002. 3. Against this order passed by the revisional Court, another revision petition came to be preferred by the petitioner in this Court. The revisional Court, after going through the material on record collected by the Magistrate and hearing the parties, found the order under revision requiring no interference and consequently dismissed the revision petition vide order dated 30.4.2002. 3. Against this order passed by the revisional Court, another revision petition came to be preferred by the petitioner in this Court. This court, however, vide order dated 02.09.2003 observed that once the Sessions Judge is moved, the jurisdiction of the High Court will stand ousted by Section 435 Cr.P.C and held as under: -- "........The position under the Code of Criminal Procedure is very clear. Provisions of section 435 of the Cr.P.C clearly contemplates that where an application for revision is made by or on behalf of any person before the Sessions Judge, his decision thereon in relation to such person shall be final and no further proceedings by way of revision at the instance or such person shall be entertained by the High Court. The effect is that while a person has a choice to move either the High Court or Sessions Court under section 435 of the Cr. P.C., if he chooses to go before Sessions Court, he cannot thereafter go to High Court if the Sessions Judge rejects his revision application. There is thus a substantial change in the law in this respect. Once the Sessions Judge is moved, the jurisdiction of the High Court will stand ousted by section 435 Cr.P.C. The Code has thus barred a second revision at the instance of the same party which has moved the Sessions Judge in revision at the first instance. In other words, where the Sessions Judge had dismissed the revision, to over come the bar of section 435 Cr.P.C., by preferring a second revision, jurisdiction of the High Court under inherent power cannot be invoked under such circumstances." 4. It is this order of this court dated 2.9.2003 in respect of which modification/clarification has been sought by the petitioner. 5. It is urged that the second revision is maintainable under section 435 Cr.P.C., as the revisional jurisdiction of the High Court is not barred if a party did not succeed before the Sessions Court. 6. I have heard the learned counsel appearing for the parties and also perused the relevant provisions of law touching the matter in controversy. 7. 5. It is urged that the second revision is maintainable under section 435 Cr.P.C., as the revisional jurisdiction of the High Court is not barred if a party did not succeed before the Sessions Court. 6. I have heard the learned counsel appearing for the parties and also perused the relevant provisions of law touching the matter in controversy. 7. The petitioner, in fact, under the garb of seeking modification/clarification of order passed by this Court on 2.9.2003, is seeking re-call of that order in exercise of inherent jurisdiction. Mr. Anil Mahajan, learned counsel for the respondent, submitted that court cannot recall or review its own orders. I do not find any substance in the submission of learned counsel for the respondent. It is apt to point out that the power under section 561-A Cr.P.C., has to be exercised ex debtio justitine to do the real and substantial justice for the administration of which alone courts exist. Section 561-A Cr.P.C., itself leaves vast powers with the Court to pass any order if it deems fit and proper. This view is reiterated from the judgment of a full bench of this court in case Prem Singh v. State, reported as 1982 KLJ 55. 8. While it is true that remedy of revision to the Sessions Judge under section 435 Cr.P.C., does not bar a person from invoking the powers of the High Court under Section 561-A Cr.P.C., it is equally true that the High Court should not act as a second revisional court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter, it must be conscious of the fact that the learned Sessions Judge had declined to exercise its revisional powers in the matter and affirmed the order passed by the Magistrate. The High Court should interfere only where it is satisfied that if the order passed by the revisional court is allowed to remain, it would result in abuse of process of court or that the interest of justice otherwise call for setting aside the order. 9. In the present case the Magistrate had dismissed the proceedings under section 145 Cr. The High Court should interfere only where it is satisfied that if the order passed by the revisional court is allowed to remain, it would result in abuse of process of court or that the interest of justice otherwise call for setting aside the order. 9. In the present case the Magistrate had dismissed the proceedings under section 145 Cr. P.C., after having found from the evidence and documents placed on record by the parties in support of their respective claims, that the petitioner has not succeeded in proving his possession over the land in dispute, which order stood affirmed in revision by the learned Additional Sessions Judge, Reasi. The order passed by learned Additional Sessions Judge, Reasi, in exercise of revisional jurisdiction, in my opinion does not amount to abuse of process of the court, warranting interference by treating the revision petition as one under section 561 -A Cr.P.C. 10. For what has been discussed above, I do not find any merit in this petition and same is accordingly dismissed. Delay in filing the petition, however, is condoned.