VRAJLAL TARACHAND DOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant in this revision application is the Manager of a concern known as Junagadh Iron Industry. An application was made to the Sub-Divisional Magistrate Junagadh Division under sec. 133 of the Code of Criminal Procedure for closing the above factory of the applicant as the factory worked by the applicant was causing nuisance under sec. 133 of the Code of Criminal Procedure. The Sub-Divisional Magistrate Junagadh passed an order on 19th January 1966 that the applicant should stop the use of electrically operated hammers that were worked in the factory. Against this order the applicant preferred a revision application to the District Magistrate Junagadh who rejected the revision application on the ground that no revision application could be preferred under sec. 438A Criminal Procedure Code in respect of an order passed under sec. 133 of that Code. This order was passed by the District Magistrate on 8th March 1966. The applicant has preferred the present revision application against the aforesaid order of the District Magistrate. The applicant has also prayed for setting aside the order passed by the Sub-Divisional Magistrate.

(2.) Mr. D.D. Vyas appearing on behalf of the applicant contended that the order passed by the District Magistrate that a revision application was not competent against an order passed by the Sub-Divisional Magistrate under sec. 133 Criminal Procedure Code was erroneous because under the relevant provisions of the Code of Criminal Procedure the District Magistrate would be the competent authority to revise such orders passed by the Sub-Divisional Magistrate. Mr. Vyas therefore urged that the order of the District Magistrate holding that the revision application was incompetent must be set aside. The learned Assistant Government Pleader raised an objection that no revision application was competent to the High Court against an order passed by the Sub-Divisional Magistrate or by the District Magistrate and that therefore the present revision application was incompetent. It was urged by the learned Assistant Government Pleader that sec. 435 of the Code of Criminal Procedure does not give any powers of revision to the High Court because the Sub-Divisional Magistrate was not an inferior Criminal Court within the meaning of sub-sec. (1) of sec. 435 and that therefore the High Court has no power to act under that sub-section. Mr. R. C. Mankad appearing on behalf of some of the opponents supported the learned Assistant Government Pleader. It would therefore be necessary to examine the question whether a revision application would lie to the High Court in respect of an order passed by the Sub-Divisional Magistrate under sec. 133 of the Criminal Procedure Code. If the Sub-Divisional Magistrate was not an inferior Criminal Court then sub-sec. (1) of sec. 435 would have no application and it would not be competent to the High Court to act under that sub-section Similarly also the High Court could not revise the order of the District Magistrate in respect of a matter arising under sec. 133 Criminal Procedure Code. In order to decide this question it would be necessary to refer to some of the relevant provisions of the Criminal Procedure Code. Sub-sec. (1) of sec. 435 reads as under:-

(3.) Part II of the Code of Criminal Procedure refers to the constitution and powers of Criminal Courts and Offices. Chapter It relates to the constitution of Criminal Courts and Offices. Sec. 6 in that Chapter provides that 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 Bombay namely:-